When foreign talent is interested in coming to live and work in the United States, one of the most common means of entry and residency is the permanent labor certification (PERM) issued by the Department of Labor (DOL). This scenario allows an employer to hire a foreign worker to work permanently in the United States. The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized on their behalf–so if you are a foreign worker looking to explore PERM as an option for entering the United States, this information will prove helpful.
The employment-based permanent residence process is generally comprised of three phases:
- PERM Labor Certification: Recruitment and Prevailing Wage Determination
- I-140 Application for Immigrant Visa and Proof of Ability to Pay
- I-485 Adjustment of Status
Recruitment and Prevailing Wage Determination
We’ve explained the prevailing wage determination at length in the past, but in a nutshell, this is the process where employers must set the salary for a position, based on labor codes and other corresponding data. This helps to ensure that salaries are listed at a fair price, and that salaries cannot be offered under market standard for a position. It exists to protect the integrity of the program, and respects the skills of the foreign worker. Conducting this research and setting the wage is the first step of a PERM position.
Next, the job must be posted and recruited for, including to domestic candidates, to ensure that the best person for the job is indeed someone abroad. This helps to protect American workers and ensure that they are not being skipped over in search of foreign talent. Typically, the PERM positions are so specific and require a unique training and skill set that isn’t often found in American workers. Despite recruitment efforts, oftentimes the best candidate for the PERM position is an immigrant.
Proof of Ability to Pay
The next phase of the PERM process is an interesting scenario that rarely occurs when domestic companies hire domestic workers. Once a PERM application is certified (approved) by DOL, the employer must file an I-140 Immigrant Worker Petition with the USCIS within six months. The employer is required to show that it has the ability to pay the wage offered and that the foreign national possesses the education, experience, and skills required in the PERM application.
This is a thorough process that generally involves submitting proof such as Profit and Loss Statements, Balance Sheets, and for new start ups, may even involve providing personal financial information from the owners. The employer’s PERM attorney will help build this case and gather the most relevant assets in the most compelling way.
The standard processing time for the I-140 Petition is typically four to six months. However, for an additional $1,225 filing fee, the USCIS will take an express approach by “premium processing” (15 calendar days). If the USCIS requests additional evidence in order to process the I-140 Petition, an additional thirty to sixty days could be added to the processing time or an additional 15 calendar days, if premium processing was requested.
Adjustment of Status
The PERM process is almost complete! The last and final step in the process is an application filed by the foreign worker. Any immediate dependents (spouse and children) may also join the foreign national employee at this step in the process and file their own applications as the employee’s dependents. The USCIS currently charges a $1,070 filing fee per I-485 application ($635 for children under the age of 14), which can either be the responsibility of the employee or the company, depending on the specific terms negotiated with the immigration attorney.
While the path to PERM is not easy, it is a program that benefits employees and employers. For the worker, they have a future in America with their family. For the employer, they have a loyal employee that will grow and prosper within the organization, helping retention rates and average length of employment data for the company.
If you are a foreign national looking to come to America with a PERM opportunity, or an employer interested in bringing foreign talent via the PERM certification, we can help! Contact Loigica today.