ONLINE PERM INFORMATION GUIDEBOOK
By Aziz Safar, Esquire
COPYRIGHT 2005, All Rights Reserved
PREFACE AND DISCLAIMER
By reading this Online PERM Information Guidebook (Guidebook), you understand that the Guidebook is for general educational purposes and that the Guidebook does not establish an attorney and client relationship. The Guidebook (and this web page) shall not be construed as legal advice. You shall hold the Guidebook author and Safar Law Office harmless as a result of any adverse action or event arising from your acting on the Guidebook's content, or for any misinformation, mistake, or outdated information contained in the Guidebook, so that the author or Safar Law Office shall not be held liable. You should consult with an immigration attorney licensed in the United States to understand your rights and responsibilities with regard to PERM, Alien Worker immigrant petitions, consular processing, visa, or adjustment of status matters, or any immigration matter.
Contents
Introduction.
Chapter One: What is PERM?
Chapter Two: Who are Professionals or Skilled Workers?
Chapter Three: The PERM Labor Certification Process.
Chapter Four: The USCIS and Filing the Alien Labor Petition.
Chapter Five: Frequently Asked Questions
INTRODUCTION
Generally speaking, an alien with an approved petition for an alien worker may apply for adjustment of status, or may simultaneously file an application for adjustment of status with the approved petition, to become a U.S. permanent resident if he or she is present in the United States, is in lawful status, is of good moral character, and not in violation of any laws, and there is an available visa number; or an alien may seek to enter from abroad through consular process if he or she is not subject to any bars or restrictions and there is an available visa number.
Employment-based permanent residence usually begins with labor certification from the United States Department of Labor (DOL).While the labor certification requirement does not apply to (EB-1) aliens of extraordinary ability, outstanding researchers, or multinational managers/executive transferees with one year experience abroad, or (EB-2) exceptional ability aliens with a Schedule A designation, or national interest waivers, aliens in the EB-3 category who are skilled workers or who possess a bachelor’s degree will need a labor certification before the sponsoring employer can file an immigrant petition.The focus of this Guidebook is on this third employment-based preference or EB-3 category and is on skilled workers or professionals with bachelor’s degrees.
CHAPTER I
What Is PERM?
Prior to March 28, 2005, an employer would submit Form ETA 750 parts A and B to the local State Workforce Agency for adjudication by the DOL.This was done as part of regular recruitment efforts after submitting the application where the agency would monitor and instruct the employer on recruitment of potential workers, or was done as part of recruitment efforts made prior to submitting the application, called reduction in recruitment (RIR).In either situation, the employer essentially submitted an application containing the offer of employment pertaining to a permanent employment position for the potential foreign worker.The application asks the DOL to see whether there are not sufficient U.S. workers who are able, willing, qualified, and available for the job and that the hiring of the potential foreign worker will not adversely affect the wages or working conditions of the labor market.8 U.S.C., sec. 1182(a)(5)(A); 20 C.F.R., sec. 656.1(a).However, a decision on the application could take years in regular cases.The delay in processing for those aliens who were approved consequently caused a delay in filing the employment-based I-140 immigrant petition.On March 28, 2005, things changed --the program electronic review management (PERM) system was placed into effect.
Under PERM, employers still must ask the DOL to see whether there are not sufficient U.S. workers who are able, willing, qualified, and available for the job and that the hiring of the potential foreign worker will not adversely affect the wages or working conditions of the labor market.However, employers now have gained a grasp over the time-frame within which they could potentially hire their alien employees in a permanent position.Employers have the option of submitting the new PERM ETA Form 9089 (20 C.F.R. 656.17) electronically, directly to the DOL. Supporting documentation is not submitted with the application; and an employer may withdraw an application filed under the regulations in effect prior to March 28, 2005, and re-file under PERM.Once the Form 9089 application is filed, a decision on whether labor certification is to issue can be had as early as 60 days.
CHAPTER II
Who are Professionals or Skilled Workers?
Before an employer begins the process of petitioning to hire an alien as a professional or skilled worker, it must be understood who qualifies as such a worker under the immigration laws.
Generally speaking, a professional in the context of the Third Employment-Based Preference (EB-3) is someone who holds a bachelor’s degree from a United States school or someone who holds its equivalent foreign degree. If the degree is an equivalent foreign degree, the employer’s willingness to accept such a degree must be clearly stated on ETA Form 9089, the application for permanent employment certification.The occupation to be filled by the alien applicant must be one that requires at least a bachelor’s degree.And the alien applicant must be able to document this degree requirement, his area of study, as well as be able to show he or she is a member of the profession as a result of his education and experience.
The reader should consult with an immigration attorney licensed in the United States about the steps needed where the employer wants to present that a Bachelor’s degree is not an absolute requirement where the employer must be willing, under PERM rules, to: accept work experience in the place of a baccalaureate (Bachelor’s) degree and such work experience is attainable in the U.S. labor market provided the employer’s acceptance of work experience instead of the degree applies equally to U.S. applicants and is stated on the application form. The reader must consult with the attorney to see what impact the combination of experience and education has on qualifying the alien under the EB-3 category when filing the I-140 because of the conventional definition of "Professional" being that it means requiring at least a bachelor's degree or its foreign equivalent for immigration United States Citizenship and Immigration Services purposes. The alien with such a combination perhaps may qualify as a skilled worker, rather than a professional.
A skilled worker is someone who possesses a skill for a position that requires a minimum of two years of training or experience.The alien must possess at least two years of training or experience and the occupation itself must be one that requires at leasttwo years of training or experience.Keep in mind that it is the occupation’s minimum requirement that defines whether the job requires a skilled worker. A combination of skill and education may qualify an alien as a skilled worker. Check with an immigration attorney licensed in the United States.
a. Under pre-PERM rules, the position could not be a job falling into the Schedule B category, wherein the government has predetermined there is need for U.S. workers.Go to www.doleta.gov and access the proper link to see which jobs fall within Schedule B. The employer then had to apply for a waiver. However, now PERM has done away with Schedule B and made it somewhat easier to fill a need for such positions. One should check with an immigration attorney to see how PERM may be utilized when the position to be filled falls into or resembles an occupationlisted in Schedule B.
b. The potential employer must be able to pay the potential employee’s salary at the prevailing wage.The employer must have a valid tax ID and be enrolled to pay unemployment insurance.
c. Both Professionals (unless the person qualifies for Schedule A pre-certification, discussed below) and Skilled Workers require labor certification before the employer may file Form I-140, which is the alien worker immigrant petition.This is where PERM enters the picture.
CHAPTER III
The PERM Labor Certification Process
The purpose of obtaining labor certification under PERM is substantially the same as arriving at a determination under the old system.It is based on whether there are not sufficient U.S. workers who are able, willing, qualified, and available for the job and that the hiring of the potential foreign worker will not adversely affect the wages or working conditions of the labor market. 8 U.S.C., sec. 1182(a)(5)(A); 20 C.F.R., sec. 656.1(a).
1. The job Description.
The job description must not be restrictive and tailored the alien’s particular qualifications.For professional positions, a U.S. Bachelor’s degree of foreign equivalent degree is required.For skilled workers, the position must require at least two years of training or experience.Any foreign language requirement should be avoided unless inherent to the job (e.g. translator) or necessitated by safety or customer need.
2. Recruitment under PERM.
Before filing the application for labor certification under PERM, Form 9089, the employer must obtain a Prevailing Wage Determination from State Workforce Agency (SWA), prepare a Letter of Business Need, Post a job order through the SWA, Advertise in a newspaper and/or professional publication, post a notice of the job stating that it is offered in connection with filing an application for permanent labor certification at the place of employment and on any of the business’s internal notification systems.The employer must then interview any applicants.If there are no applicants or if the applicants do not satisfy the employer’s criteria, the employer must indicate this in a report or letter of recruitment results.Recruitment must be conducted at least 30 days, but not more than 180 days prior to filing the application for labor certification.C.F.R. 656.17.Notice of filing must be made between 30 and 180 days prior to filing.C.F.R. 656.10.
Prevailing Wage Determinations From SWA
The employer must request a prevailing wage determination from the SWA with jurisdiction over the area of prospective employment. For example, if the prospective place of employment is Pinedale, Wyoming, the Jackson Workforce Center in Jackson, Wyoming would have jurisdiction.The employer may apply for the prevailing wage determination by going on the SWA’s website, filling out the prevailing wage form, printing it out and then faxing it to the SWA. The website can be found by calling the local state work force agency or by searching on www.doleta.gov to find information on the local office.
The SWA must include the prevailing wage, SOC/O*NET (OES) code, the occupation title, skill level, wage source, determination and expiration date.The employer must include this information on ETA Form 9089. Theemployer must then offer a wage equal to or greater than 100% of the prevailing wage.The prevailing wage determination expiration date will not be less than 90 days nor exceed one year from the date determination was made.The employer must file the application for labor certification within the prevailing wage determination’s period of validity.
It is prudent for the employer to obtain a prevailing wage determination before beginning recruitment because the notice of filing must not state, and the employer is not permitted to offer, a wage rate below the prevailing wage to a U.S. worker.
If the employer disagrees with the prevailing wage determination, he or she has one opportunity to provide supplemental information to the SWA, or the employer may choose to file a new request, or he or she may request review by the Certifying Officer.
RECRUITMENT
a. Posting a job order
An employer must apply for a job order through the SWA for a job order to bevalid.This means that direct posting on America’s Job Bank will not be valid.The employer can go to the SWA’s website covering the area of employment and go to the section where employers can recruit potential employees.There the employer sets up a job order.The employer fills out the form by including the employer’s address and contact information, tax ID, and the method in which potential employees are to respond.The job order must end at least 30 days prior to filing.
The employer must document this step. The emplouyer should print out the completed, submitted job order form as well as obtain some written confirmation from the SWA that the job order was made and when it was posted, when it closed, and whether someone responded. (The employer can also use the same prevailing wage determination if it is derived from the same wage source and is being used for the same exact occupation, skill-level, and area of intended employment.)
b. Advertising
An employer must place a newspaper advertisement on two different Sundays in a newspaper that is most likely to elicit responses from able, willing, qualified, and available United States workers for the position advertised. Newspapers that typically cater to particular field with a Sunday circulation are one consideration.If a rural area has no Sunday edition, then the employer should look to advertise in paper with the widest circulation.
The employer will then request tear sheets (the actual sheet from the newspaper showing the ad, paper name, and date of publication) from the newspaper and request an affidavit of publication (a signed sworn statement from the newspaper official that the ad was published) on the two Sundays.The last day of advertising must be at least 30 days before filing the application for labor certification, but not more than 180 days before filing the application.20 C.F.R., sec. 656.17(e)(2).
The ad should adequately describe the job opportunity, should state the name of the employer, the place of employment, geographic area, and how to reach the employer.If the job’s duties and requirements like education of experience appear in the ad, these same duties and requirements must also appear on the ETA Form 9089.
If a wage rate is included in the advertisement, it cannot be below the prevailing wage.
NOTE:Professional positions require three additional recruitment steps.If the occupation involved is published in Appendix A to the preamble of the final PERM regulation or is one for which a bachelor’s or higher degree is a usual educational requirement, the employer then must choose three of ten additional steps: utilizing job fairs, website job search, employer’s website, on-campus recruiting, utilizing trade or professional organizations, using private employment firms, using employee referral programs with incentives, using local and ethnic newspapers, using campus placement offices, and using radio and television advertisements.These required steps must be different and in addition to the job order, two Sunday ads, and notice of filing.
c. Notice of Filing.
The employer is required to give notice of the filing of the applicationfor permanent employment certification and document that notice was given to the bargaining representative of the employer’s employees or if there is no bargaining representative, the employer must also place an internal posting in conspicuous places at the location of employment for ten consecutive business days as well as placing such notification in any and all in-house media either electronic or printed as used for normal business procedures for recruiting similar positions by the employer.
The notice must state the job description, the employer’s name and address, the area of employment, the wage, and state that it is being provided as a result of the filing of an application for permanent labor certification for the relevant job opportunity.It must also state that any person may provide documentary evidence bearing on the labor certification application to the certifying officer.It must include the address of the Certifying Officer where the job opportunity is located.
If the job opportunity is in Alabama, Florida, Maryland, New Jersey, Puerto Rico, Vermont, Connecticut, Georgia, Massachusetts, New York, Rhode Island, Virgin Islands, Delaware, Kentucky, Mississippi, North Carolina, South Carolina, Virginia, District of Columbia, Maine, New Hampshire, Pennsylvania, Tennessee, and West Virginia, the Certifying Officer’s Processing Center address is:
United States Department of Labor
Employment and Training Administration
Atlanta National Processing Center
HarrisTower
233 Peachtree Street, N.E. Suite 410
Atlanta, Georgia 30303
It is a good idea to contact the processing center to confirm that the processing center is servicing the employment area.The Atlanta office telephone number is (404) 893-0101.
If the Job Opportunity is in Guam or any other U.S. state not listed above, then the ChicagoNationalProcessingCenter is the address, at:
United States Department of Labor
Employment and Training Administration
Chicago National Processing Center
RailroadRetirementBoardBuilding
844 N. Rush Street
12th Floor
Chicago, Illinois60611
Again, it is a good idea to contact the processing center to confirm that the processing center is servicing the employment area.The Chicago office telephone number is (312) 886-8000.
The last day of posting the notice must be at least 30 days before filing the application for permanent labor certification and not more than 180 days before.
NOTE: In the case of a Schedule A occupation, the notice must state that any person may provide documentary evidence bearing on the Schedule A labor certification application to the USCIS office where the I-140 is has been filed.
As indicated earlier, Schedule A occupations are pre-certified and are not the subject of this Guidebook.Go to the U.S. Department of Labor website to see which occupations qualify as Schedule A.The employer files the I-140 petition with supporting documents directly with U.S. Immigration, the USCIS.
The employer, in a Schedule A situation, files the I-140 with a signed Form ETA-9089 in duplicate, signed in original by an authorized official of the employer/petitioning organization, the alien, and the representative, if any, a wage determination, a copy of the posted notice, and copies of any and all in-house media.
A very brief example, for petitions filed for registered nurses (Schedule A Group II Petitions), the submission must include a full, unrestricted permanent license to Practice nursing in the state of intended employment, CGFNS certificate issued by the Commission on Graduates of Foreign Nursing Schools or evidence that the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN), administered by the National Council of State Boards of Nursing.The Schedule A nurse must still provide a Visa Screen certificate issued pursuant to section 212(a)(5)(C) or section 212(r) of the Act before she may adjust status.
d. Applicant Resumes and Responses
The employer must respond to and interview each applicant. The employer then prepares a written recruitment report.The employer must document its interview and keep a copy of each applicant’s resume.In the report, the employer must categorize the reasons for denying U.S. applicants.The reasons must be lawful and related to the employment position.The employer must also document and state the number of U.S. applicants denied in each category. The report need not specifically identify the U.S. workers who applied.However, the employer must be prepared to submit to the Certifying Officer, the resumes of those U.S. workers rejected, cataloged or sorted by the reasons the workers were rejected.
e. Letters of Business Necessity
A job opportunity’s requirements generally should not exceed theSpecific Vocational Preparation (SVP) assigned to the occupation in O*Net Job Zones and must those normally required for the occupation. Look at the SOC/O*NET code and occupation title. However, an employer sometimes needs more than the basics to properly run her business.In such a situation a business necessity can provide justification. The employer can provide evidence of business necessity along with a letter explaining the circumstances.The evidence must show the excessive duties and requirements bear a reasonable relationship to the occupation in the practice of the employer’s business and are essential to perform the job in a reasonable manner.
f. Online Application
The new labor certification application can be filed by mail or electronically. Because applications filed by mail are re-input electronically, the subject of this Guidebook on this point is to focus electronic filings.Electronic filing is therefore quicker.It also ensures the employer has filled in all the required fields. The employer will need to go to the DOL online applicaiton website at:http://www.plc.doleta.gov
i. Employer Registration
There are two users who may prepare PERM applications:The employer or the employer’s attorney or authorized representative.Only the employer, however, can register.
After typing in the website http://www.plc.doleta.gov, a message will appear and then the log-in page is displayed.The employer then is to click on Registration.The terms and conditions page is displayed, and if accepted, the employer then fills in the User Profile, Employer Business Information, and Employer’s Contract Information on The “Welcome New Employer” page.Required fields will have an asterisk.Note, the employer’s email address is the main means of communication in the Registration process. Then the employer clicks on “Submit.”
Once verified, the employer will receive an email with credentials from the U.S. Department of Labor.The employer will use this information to access the system as a registered user.The employer types in the username and temporary password given in the email.
ii. Sub-Accounts
After accessing the system, the employer can use sub-accounts for its attorney or representative.From the PERM system, a person with permission to manage user accounts can select the User Accounts tab.Then the user access list is displayed.The employer then selects Add New Users and the User Information edit page is displayed.The employer then fills this out with selecting the Security Access level to give the user. User accounts can be edited by selecting Modify.
iii. PERM Application ETA Form 9089
The employer or representative clicks on create case.
Converting a pre-PERM application into one under PERM. If a job order has not been placed under the regulations in effect before March 28, 2005, an employer may re-file under PERM by withdrawing the initial application and re-applying under PERM for and identical job within 210 days. After clicking on Create Case.Indicating you are seeking to utilize the filing date of a previously submitted Application for Alien Employment Certification is considered to be a withdrawal of the initial ETA 750 application. This is important for those who wish to retain the original priority date of when the pre-PERM ETA 750 was filed, especially if filing before the sunset of a grandfathering immigration provision becomes an issue. If the case is not being converted and is a new case, the employer indicates the SWA case number, or if not available, the state where the case was filed.
Going back to filing Form 9089, the employer or representative then completes Form ETA 9089 and can save the data for submission at a later time.Included fields in the application are the prevailing wage tracking number, SOC/O*NET (OES) Code, Occupation Title, Skill Level (as of March 8, 2005, there are four skill levels and a requirement to pay 100% of the prevailing wage), prevailing wage, prevailing wage source, and prevailing wage determination date.The employer must also enter all the relevant information about the alien employee, such as education, experience, or combination of education and experience. After submitting the application, the employer will be able to save it to his or her hard drive as well as print it for signature.After certification, the document must be signed with all required signatures. (Applications filed by mail require all original signatures at the time of mailing/submission.)
Note, the application must not be submitted later than 180 days after any recruitment step.
The application is subject to random audits. Further, if fraud or willful misrepresentation is discovered before final labor certification determination, the Certifying Officer will refer the case to the Department of Homeland Security (DHS) for investigation.Should 90 days pass without a criminal indictment or criminal complaint by information issuing, or notice from DHS or the DOL’s Office of Inspector General, the Certifying Officer may continue the process. Also note, a labor certification can be revoked if unjustified, fraudulent, contains willful misrepresentation, or a mistake is discovered.
If a labor certification is denied or revoked, the employer may present a request for review to the Board of Alien Labor Certification Appeals (BALCA) in writing within 30 days of the adverse determination to the Certifying Officer who denied or revoked the application.
b. All Relevant Documents Must Be Retained By The Employer For Five years.
The following documents, and any attendant documentation (this is not and exhaustive list), must be retained by the employer for a period of five years from the date of filing the ETA Form 9089:
i. Prevailing wage determination
ii. Newspaper tear sheets and/or affidavit of publication
iii. Printout of online job order and job order verification documents from SWA, including when the job order opened and when it closed. Be sure that when the job order is placed to contact the SWA to make certain, you as the employer have been verified.
iv. Letter of Business Need
v. Attested to, signed, Notice of Posting
vi. Evidence of Additional Recruitment (especially for professionals)
vii. Resumes of any applicants
viii. Online PERM Application (with signatures)
CHAPTER IV
USCIS and Filing the Alien Labor Petition
1. Form I-140 with filing fee.
Once labor certification is obtained, the process of perfecting employment turns to the United States Citizenship and Immigration Services (USCIS).The employer files Form I-140, the Immigrant Petition for Alien Worker.The beneficiary alien employee files Form I-765 with the I-140 petition and may be eligible to file Form I-485 if the alien is present in the United States. However, PERM may cause a backlog in the availability of visas or maybe that all visas may be used up for the particular category until becoming available again at a later date. An alien who is planning to file for adjustment of status should consult with an immigration attorney first on the availability of visas for his or her preference petition to see if he or she can adjust status. As for the paper immigration forms just mentioned, these forms are discussed further below.
When labor certification is obtained, the employer will need to file the immigrant petition for an alien worker, Form I-140.The employer fills out the form and signs it.(If there is an attorney, he or she signs as preparer.)The form can be obtained from a local U.S. Immigration office or by going to the official USCIS web site: www.uscis.gov and clicking on “forms.”Also, there is a filing fee for Form I-140 and an employer should see what the current filing fee is by looking on the USCIS website so that the proper filing fees can be enclosed.The website/forms instructions will indicate where to file, how payment is to be made, and to whom payment is made.
When submitting the Form I-140, the employer is to include:
a. Original Labor certification
b. Form I-140 signed by the employer
c. Employer should include a letter describing the job offer in simple terms
d. i. If alien is a Skilled Worker: A Letter of Experience from the alien’s former employers.
ii. If alien is a Professional: A. Copy of Degree or certification of Foreign Degree US equivalent if Education, B. official college or university record showing the date the alien’s bachelor’s degree was granted and area of concentration or study, C. evidence the occupation is a profession because a bachelor’s degree is needed, D. evidence the alien is member of the profession as a result of education and/or experience (the evidence can be letters from employers or trainers with the name address and title of the employer or trainer describing the training or experience of the alien).
e. Copy of Employer’s most recent two years’ and the Tax returns for the year in which employer applied for certification.(It is important that the employer be able to show that he or she is making enough profit to pay the potential employee’s salary.)
2. Forms I-485 generally (and I-765 with filing fees and biometrics).
If the alien is in the U.S., he or she may apply for adjustment of status concurrently with Form I-140.The rule that allows for concurrent filing was enacted as an interim rule in July of 2002 and is now codified under INA, section 245(a)(2)(i)(B). The alien also needs to file for employment authorization, Form I-765 and pay the biometrics/fingerprinting fee.The fees for biometrics, the I-485 filing fee, and I-765 filing fee are obtainable at the USCIS website.
NOTE: If the petition indicates the alien is overseas, the alien does not file Form I-485.If and when the I-140 is approved the alien will instead need to go through Consular processing, discussed later.
Assuming the employee is in the United States, he or she will be able to apply for adjustment of status if he or she entered the United States legally (through inspection) and is not out of lawful status (valid visa).But see INA, section 245(k) 180 days of forgiveness.Also, the visa should be one that allows for immigrant intent (such as H1-B, or a visa that does not require a foreign residence); also, the alien should not have entered as a visitor with the intent to live and work here.
If the applicant has overstayed his visa, illegally worked in the United States, or illegally entered the United States, all is not lost under United States laws.INA, section 245(i) allows those persons for whom a an immigrant petition or labor certification was filed before April 30, 2001, to be grandfathered under that law.Grandfathered aliens are categorized as those on whose behalf the immigrant petition or labor certification was filed on or before January 14, 1998 and those filed after January 14, 1998.Those persons seeking adjustment of status under 245(i)based on an immigrant petition or application filed after January 14, 1998, must also prove they were physically present in the U.S. on December 21, 2000.Spouses and children of the principal applicant who satisfy the statute and are seeking adjustment of status as derivative beneficiaries will receive the same benefit.Those aliens seeking the 245(i) benefit must pay an additional $1000 to the government for forgiveness.Those seeking the benefits of 245(i) will have to include the I-485 Supplement A with the appropriate fees.
The alien should discuss with an immigration attorney whether an event or circumstance raised by the questions on Form I-485 would render the alien ineligible for adjustment.Such things include, but are not limited to, whether the alien illegally entered the U.S., whether the alien worked illegally worked in the U.S., is subject to the two-year foreign residence requirement (J Visas) and has not received a waiver received means-tested government benefits, was arrested, was convicted of a crime, certain affiliations, committed fraud or misrepresentation, or did so with regard to immigration benefits, and the like.
Spouses and children of the principal alien may receive derivative status.
NOTE: a visa number must be available.The employment category must have its visas current for the alien(s) to be able to adjust status.
The alien must submit with I-485 (and Supplent A and fee if 245(i))
i. Birth Certificate
ii. Marriage certificate if derivative beneficiary with attached certified translation.
ii. Copy of divorce decree, where applicable
iv. Copy of Form I-797, Notice of Action that Form I-140 was approved
v. Complete copy of beneficiary’s passport
vi. Sealed Medical Examination (Form I-693) with beneficiary’s name, date, and place of birth written on the outside of it
vii. Copy of I-94 card, arrival/departure record
viii. A recent and most current offer of employment letter
ix. Pay stubs, W-2 forms, and federal income tax returns, for last three years
x. Any records of alien’s U.S. nonimmigrant history and past approval notices
xi. Two Green card style (or passport style photographs) photographs
xii. Affidavit of Support Form I-134, where applicable
xiii. For Fees go to www.uscis.gov
Form I-765 should include two photos and filing fee.
An adjustment applicant cannot leave the United States while the application is pending without first receiving advance parole travel documents.
The alien will be notified to appear for fingerprinting and then will be given a notice for appointment to appear at an interview.
3. Consular Processing.
If thealien is out of status and does not fall within the forgiveness provisions under the law, or if the alien is residing abroad, overseas, he or she must apply for a visa through consular process. Again, a visa number for a preference petition must be available.
Under IIRIRA, aliens who over stay their visa by more than 180 days, are subject to a three-year bar to re-entering the United States, once they leave the U.S.That is, they cannot re-enter the U.S. for a period of three years.Also, aliens overstaying their visa for a year or more, are subject to a ten-year bar to re-entering the U.S., they cannot re-enter the U.S. until ten years have passed.Unless these aliens can receive the benefits of 245(i), they will be subject to these bars once they leave the U.S.
NOTE: Aliens who have been removed from the U.S. through removal Proceedings, illegal and fraudulent entrants, among other violations are subject to bars or are otherwise restricted aliens.
Consular immigrant visa applications are sent to the National Visa Center (NVC) once the NVC receives notice from USCIS of the approved I-140 petition. Once a case number is issued by the NVC the following Department of State forms and Immigration forms should be submitted with proper visa fee and any affidavit fee:
a. DS 230, parts I and II
b. Form OF 169
c. Original birth certificate (with certified English translation)
d. Original marriage certificate (with certified English translation)
e. Proof of prior marriage termination, if it applies (with certified English translation)
f. Police certificates from the applicant’s home country if there six months or more since age sixteen and from any other country where applicant resided for one year or more since age sixteen.
g. Court records
h. Medical exam by physician designated by consulate
i. Affidavit of Support, Form I-134
j. Three Green Card photographs
k. And an employment confirmation letter from the new potential employer
CHAPTER V
Frequently Asked Questions
1. Is PERM a form of Amnesty?
No.PERM is a new and much quicker method by which a labor certification may be obtained.This, in turn, substantially reduces the waiting time within which an alien may begin working for his/her petitioning U.S. employer, and adjust status, assuming there is no backlog with a visa number and the visa is readily available and current.
2. What if someone entered the US illegally, can he/she still obtain a green card under PERM?
No.Unless he/she can receive the benefits of INA, section 245(i) (see Above).
3. What if an alien overstayed his or her visa, can he or she still acquire a green card under PERM?
No. Unless INA, section 245(k) or section 245(i) apply, the alien must return to his or her home country where, once they leave the U.S. the alien will be subject to a three year bar to re-entering the U.S., if he or she overstayed the visa for more than 180 days but less than one year, or cannot re-enter the U.S. for ten years if he or she overstayed the visa (I-94 date) for a year or more.
4. What if an employer advertised before March 28, 2005, can he still use that advertisement as part of the recruitment process with PERM?
Yes, so long as the advertisement was published within 180 days of filing ETA Form 9089, application for labor certification.
5. Can an application for labor certification filed prior to PERM be converted to a PERM type of application?
Yes. A pre-PERM application for permanent alien labor certification can be converted to PERM by withdrawing the original application and re-filing the PERM application within 210 days of the withdrawal.
6. Is PERM useful to employers seeking to sponsor aliens all ready in the United States?
Yes. If the alien is in lawful status and has a visa that allows for dual intent (immigrant and non-immigrant intent, e.g., H1-B visa), PERM reduces the time required for an adjudication on the labor certification application
7. How can aliens all ready in the United States use the PERM-based labor certification to obtain a Green Card?
If the alien is in lawful status and has a visa that allows for dual intent (immigrant and non-immigrant intent, e.g., H1-B visa), the employer may file the immigrant petition for an alien worker based on the approved application for labor certification, and then the alien can file for adjustment of status if the alien is in lawful status or can use the benefits of INA, section 245(k) or section 245(i), and there is an available number of visas.
8. Can PERM be used for aliens abroad?
Yes. PERM is simply the process by which a determination is made that the alien is not taking jobs away from U.S. available workers. It can be used to acquire the labor certification that underlies the I-140 petition.
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