How to Apply for a Green Card Through Your Employer

Опубликовал Admin
13-11-2016, 04:48
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In the United States, an employer can sponsor a foreign national, such as you, for a green card. The employer must be willing to sponsor you and to hire you once you get your green card. To do this, your employer must prove that there is no US citizen who is 1) qualified, 2) willing and 3) able to fill the position. Then your employer must show the financial ability to pay your salary (which is set by law). Though the process is seldom straightforward and often depends on individual circumstances, with a little bit of knowledge you will be well on your way to obtaining your green card.

Getting Employer Labor Certification

  1. Understand the general requirements for labor certification. Labor certification must be filed with the Department of Labor (DOL) by an employer and must comply with the regulations under the PERM process. The purpose of labor certification is to prove that the employer has tested the labor market to ensure that there is no qualified, willing, and able US worker who can fill the job opening. If there is such a US citizen, then the employer cannot sponsor the employee for that particular job.
    • To test the labor market, the employer must recruit for the position by running various advertisements and monitoring whether there are any qualified applicants for the position. Once this is done for the time periods laid out by DOL, the employer may file the application.
    • All advertising and legal fees for this step must be paid by the employer, not the employee.
  2. Have your employer draft a job description and job requirements for the position. This is one of the most important parts of the process because these will be used to test the labor market. The requirements should specify what degree of education is required (Bachelor’s, Master’s, none, etc.) and how many years of experience are required.
  3. Ensure you meet the requirements listed in the job description. To adequately test the job market and ensure that your case will be approved, the applicant must be qualified for the job requirements put forward by the employer.
  4. File a Prevailing Wage request with DOL. The prevailing wage is the minimum wage that the employer must pay the employee once he or she receives the green card. The prevailing wage is determined by the specific job requirements, duties of the position, as well as location of the position. To determine the prevailing wage, the employer can file Form 9141 online or visit the Online Wage Library.
  5. Create an account for the employer with DOL. To file the labor certification online, the employer must create an account at plc.doleta.gov. To create an account, the employer must choose a username and password, fill in the company information, and designate a contact person. If your immigration attorney will be filing the application, the employer must create a sub-account for the attorney with his or her information.
    • Creating an account can be done while waiting for the prevailing wage determination and before any advertisements are run. Allow extra time for this to be set up because DOL may have to verify that the employer name and information matches the federal Employer Identification Number.
  6. Run the mandatory advertisements. There are three mandatory forms of recruitment that an employer must run for each case:
    • Internal posting notice — The employer must post a notice of the job opening in a conspicuous location in the workplace. It should contain the job description, requirements, and information regarding how to apply for the job. This must be posted for at least ten business days when the employer is open for business.
    • Two Sunday newspaper advertisements — The employer must post an advertisement in two Sunday editions of a newspaper of general circulation in the geographic area of employment. The advertisements must generally inform applicants of the job opportunity, the basic requirements, and how to apply. It need not include a full description of the job, nor the salary. If it does include the salary, that salary must meet or be greater than the prevailing wage.
    • Advertisement with the state workforce agency — This should contain the job description, job requirements, and information regarding how to apply for the job. It might also need to include other information that is required by the specific state workforce agency. This must be posted for 30 calendar days.
  7. Run additional advertisements (if needed). If the job is a professional job — defined by DOL Appendix A, found at this website — or requires at least a Bachelor’s degree, the employer must run three additional advertisements out of a possible ten methods. A list of the ten additional advertisement methods are given in the regulations at 20 CFR 656.17(e)(1)(i)(4)(ii) and can be found here.
  8. Complete all recruitment in 180 days and observe the 30 day quiet period. The regulations state that recruitment must be completed in 180 days. Additionally, the labor certification application cannot be filed less than 30 days after the last advertisement. This means that you must file the labor certification application within 180 days from the first advertisement, and more than 30 days after the last advertisement.
  9. Verify that no qualified, willing, and able US workers applied for the position. For all resumes received, the employer (and not the immigration attorney) must consider whether the applicant meets the requirements as advertised in the recruitment methods above. If an applicant is not shown to be qualified by the experience and education shown on the resume, no action is needed. If an applicant appears qualified, the employer must attempt to contact the applicant to determine if there is an objective reason why the applicant is not qualified for the position. All reasons for such disqualification must be documented. When finished, complete form ETA 9089 and submit the application through the employer’s account with DOL.
  10. Have your employer answer the survey sent by DOL. Soon after the ETA 9089 is filed, DOL will email the employer a four question survey to verify that the employer still intends to sponsor the employee for a labor certification. If DOL does not receive the response within one week, it will not accept the labor certification application.

Navigating Form I-140

  1. Understand the general requirements for Form I-140. After the labor certification is approved, the employer must file Form I-140 with the US Citizenship and Immigration Service (USCIS). This application will prove to immigration that the labor certification has been approved by DOL, that the employee has a definite offer of employment at the sponsoring employer, and that the employer has the financial ability to pay the proffered salary.
  2. Sign the certified ETA 9089. The employer must sign the original ETA 9089 that is certified by the DOL and include it with the I-140 application packet.
  3. Prove the employer’s financial ability to pay the proffered salary. The employer may establish its ability to pay the proffered salary with one of the following:
    • Annual report
    • Federal tax return
    • Audited financial statements
    • Note: Employers with over 100 employees may choose to submit a financial statement to prove the ability to pay, but should provide one of the three documents listed above, if possible. Criteria for ability to pay can also be satisfied by one of the following:
      • Net income — if net income is greater than the proffered wage
      • Net current assets — if employer net current assets are greater than the proffered wage
      • Employment of the foreign national — if the employer is already paying the foreign national the proffered salary
  4. Have the employer issue an offer of employment letter. The letter must be printed on the employer’s official letterhead and signed by someone qualified to make hiring decisions for the company. The letter should state that the employer intends to hire the foreign national once he or she receives a green card, and should include the job position, salary, and job duties drafted earlier.
  5. File Form I-140 with USCIS. You may be able to file Form I-140 online. Include a check for the filing fee of $580 as well as any supporting documents.

Achieving an Adjustment of Status

  1. Determine if there is a green card available by checking the DOS visa bulletin. Whether a green card is available is determined by 1) the date the labor certification was filed (known as the “Priority Date”); 2) the occupation’s “Preference Category”; and 3) the foreign national’s country of nationality. If the priority date is current for the foreign national’s preference category and country of nationality (marked by a “c”), or the priority date is after the date listed on the visa bulletin, the foreign national may apply for a green card.
    • A job that requires a Master’s degree or a Bachelor’s degree plus five years of experience will place the foreign national in the EB-2 preference category.
    • All other jobs with lesser requirements will place the foreign national in the EB-3 preference category.
    • The DOS visa bulletin is found here and is updated each month.
  2. If the foreign national is present in the United States in valid immigration status, file for an “Adjustment of Status” with USCIS via Form I-485. Additionally, submit these documents or pass these requirement for continued eligibility:
    • Apply for a work authorization and advance parole document. Having Form I-485 pending allows the foreign national to file Form I-765 and Form I-131, respectively.
    • Obtain a medical exam by a civil surgeon approved by USCIS. A list of civil surgeons can be found here.
    • Include a check for the government filing fee of $1,070
    • Include a copy of your passport, visa, I-94 card, and any USCIS approval notices. Also include a copy of your birth certificate.
    • You may apply for a green card for your spouse and children under age 21. To do so, file a form each for your spouse and children under age 21 with their supporting documents. Include a copy of your marriage certificate.
  3. If the foreign national is not present in the United States, attend an appointment at a US Embassy or Consulate abroad and obtain an immigrant visa. You will be allowed to enter the US with that visa and then will be mailed your green card a few weeks later.
    • Send original documents to the National Visa Center. A list of required documents will be mailed to the applicant with instructions.
    • File Form DS-260 online. This form and its instructions can be accessed here.

Tips

  • Information about the PERM regulations can be found on the DOL’s website. There is a large Frequently Asked Questions segment also listed at http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm
  • Keep records of all recruitment steps and resumes received in an “audit file.” DOL can audit any PERM case up to 5 years after it is approved and can deny the case if the employer cannot document that it conducted all recruitment steps properly. Having poor records will make it very difficult to respond to an audit.
  • Understand the requirements for all three steps before beginning this process. If the employer cannot meet the financial ability requirements, an approved labor certification will not help the foreign national obtain a green card.
  • If your priority date is current, you may file Form I-140 and Form I-485 concurrently.

Warnings

  • This is a very complex type of case and there are many procedural issues that must be satisfied. Mistakes can result in significant delays and may require the employer to begin the process over again. This article cannot address each issue that may affect a PERM case. You should consider hiring an experienced immigration attorney to assist with the preparation of this type of case to ensure that all requirements are met.
  • Having a labor certification application or I-140 pending or approved will not give the applicant any immigration status. If you are present in the United States, you must maintain valid status until you file Form I-485.
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