EMPLOYMENT-BASED IMMIGRATION

There are several ways to become a U.S. permanent resident, but for practical reasons only two are available to the majority of aspiring residents. The first depends on family ties to a U.S. citizen or a permanent resident, and the second is based on an offer of permanent employment extended by an employer operating a business in the United States. The term “U.S. employer” also covers foreign-owned entities doing business and having a legal presence in the United States. Individual employers (non-entities) may also sponsor foreign workers, but they must be either U.S. citizens or legal permanent residents.

The employment-based immigration is subject to the overall annual numeric limitation of 140,000 visas divided among five employment categories known as preferences.

The first employment-based preference (about 40,000 visas annually) covers a variety of “priority workers” such as:

• (1A): Aliens of extraordinary ability in the sciences, arts, education, business, or athletics

• (1B): Outstanding professors and researchers

• (1C): Managers and executives of internationally operating companies transferred to work in a U.S.–based division or subsidiary

The first employment subcategory, 1A, is the most advantageous of all, as it does not require a sponsoring U.S. employer but allows the “extraordinary alien” to de facto sponsor himself or herself. There is only one caveat: The prospective immigrant must demonstrate that he or she is immigrating to America to “continue work in the area of expertise…” that ultimately will “substantially benefit the United States.” This can be proven by letters from prospective employers, evidence of contracts, or simply by a letter authored by the beneficiary detailing his or her future plans. The reason for such relative laxness in demand for employment assurances is the assumption that a person of such professional caliber will not have any real-life difficulty in securing suitable employment. The only true hurdle in this category is to amass the necessary evidence of “extraordinary” status.

The second employment-based preference (about 40,000 visas annually plus the number unused by the first preference) covers these two subcategories:

1) Aliens of “exceptional ability in the sciences, arts or business” and

2) Advanced degree professionals (Master’s Degree and higher)

The third employment-based preference (about 40,000 visas plus any leftovers from the first two preferences) divides the available quota among:

1) Professionals with Bachelor’s Degree not qualified under the second preference

2) Skilled workers (most trade occupations and any number of positions requiring at least two years of training and professional experience)

The fourth employment based preference (about 10,000 visas per year) assigns a portion of the annual employment visa quota to “certain special immigrants.” The cryptic certain special immigrants category serves basically as the “all others” category that accommodates a variety of special interest and ad hoc groups granted preferential treatment as a side benefit to a selection of legislative ideas. The preference includes, among others, ministers of religion and religious workers; certain employees or retired employees of the U.S. government who served overseas; certain officers and employees of international organizations who resided in the U.S.; some more narrowly defined categories of widows or widowers, unmarried sons and daughters; and others. The list is longer but has one commonality—the obscure nature of the qualified groups that guarantee that the annual visa quota is never oversubscribed.

The fifth employment-based preference (about 10,000 visas per year), also known as “employment creation” is reserved for immigrant investors.

The procedural requirements for obtaining permanent residence through employment are quite similar in many respects. In both groups, U.S. sponsors are required for both the family and employer-sponsored immigrants. Practically, only two categories are exempt from this requirement. The first preference “extraordinary ability” applicants can self-petition as they are by law prejudged to have professional qualities almost guaranteeing employment. The second preference applicants may avoid the entire set of complications associated with the usual petitioning of the Secretary of Labor, but they must instead manage to receive a waiver of the otherwise necessary formal job offer by successfully arguing directly before the U.S. Secretary of Homeland Security that their future employment would be “in furtherance of the U.S. national interest.” Almost all others (except a few pre-certified occupations such as physical therapist and professional nurses) must apply to the U.S. Department of Labor for special permission, i.e., Permanent Labor Certification.

It can safely be said that the application for labor certification frequently referred to by its acronym PERM (Program Electronic Review Management) is the single most complex, many times baffling, and most unpredictable procedure in the whole business of immigration law. It is also the bread and butter for most immigration practitioner as it is the basis of all immigration-related efforts by the majority of would-be U.S. immigrants with no family ties to the United States.

There are no government fees for filing the Labor Certification Application. In order to receive this certification, the petitioning employer (the employer is the main actor) must prove to the satisfaction of the U.S. Secretary of Labor that it was unable to find any “able, willing, qualified and available” U.S. workers for the offered position and that the employment of the prospective immigrant will “not adversely affect the wages and working conditions of similarly employed U.S. workers.” To successfully present such proof, the employer has to comply with a list of detailed requirements pertaining to the conditions of the offered employment, such as wages, offered hours, perceived scope of the job duties, etc.

The initial step of the procedure imposes on the employer the need to file a special request: Application for Prevailing Wage Determination. This application, addressed to the U.S. Department of Labor, results in an official estimate of the prevailing wage in the particular occupation in the intended area of employment. This wage estimate uses collected statistical data to arrive at the prevailing level of compensation. Next comes the obligatory recruitment campaign designed as a sort of labor market probe. Although there is no explicit prohibition in the existing regulations, it seems sensible, and may we dare to say logical, to wait for the approval of the Application for Prevailing Wage Determination before instituting any formal recruitment steps. The recruitment portion of the PERM regulations mandate that the offered position, even if it is currently occupied by the very same person on whose behalf the application is being filed, must be advertised at least twice in a local general-circulation newspaper and must be placed with online state job bank database and officially announced by a scrupulously crafted job posting to be displayed at the employer’s premises for no less than 10 consecutive business days. Professional positions (Bachelor’s Degree or higher) require even more elaborate labor market probing steps.

Only after all these mock recruitment campaign steps are completed and any possibly qualified applicants are contacted, interviewed and legally disqualified, the employer may file the actual Application for Permanent Employment Certification (U.S. Department of Labor, Employment and Training Administration form ETA 9080). The task is usually accomplished electronically by inputting all the necessary data into a specially designed government web filing system. The procedure does not require submittal of any evidence of the mandatory recruitment campaign along with the application. A formal recruitment report should, however, be prepared at the conclusion of the market probe and before the filing of the application. Such a recruitment report must recount all the steps undertaken and, depending on the actual circumstances, elaborate on the results of the labor market test. The same refers to the documentation of the mandated steps that must be assembled before the filing.

The application itself is not much more than a collection of attestations by which the employer, the sponsored employee, and finally the attorney declare compliance with all the governing rules and announce the completion of the needed recruitment steps. The report and the recruitment documentation must be prepared in advance. This “good efforts” evidence comes quite handy should the U.S. Department of Labor desire to verify the employer’’s declarations.
In the beginning of the PERM era, the process seemed to work more smoothly. Usually, only after several months of processing and if no formal discrepancies warranting outright denial of the applications were found, the certification was issued. Its body was printed on a bluish official paper and send to the employer or the employer’s attorney if one was selected. These days, the process of application verification (audit) is becoming more the norm than the exception, especially in relation to the less demanding nonprofessional occupations. A growing number of cases are subject to the audit procedure and are selected for a second round of formalities known as supervised recruitment. The current job market conditions and the ensuing perception of abundance of qualified labor force are most likely behind the DOL’s increased vigilance.