IMMIGRATION (PERMANENT) VISAS
For most professionals being sponsored for permanent resident status in the U.S., the green card process consists of three steps: labor certification, the immigrant visa petition, and an application for permanent residence. Labor certification is a federally-required test of the U.S. labor market in the intended area and occupation of employment. For the employer to complete the labor certification process on behalf of a sponsored employee, the employer must demonstrate that no qualified, willing, able and available workers can fill the position on a permanent, full-time basis, and that the permanent placement of the sponsored foreign national employee in that position will not adversely affect the wages and working conditions of U.S. workers. The employer does so under the rules and regulations governing the Department of Labor’s Program Electronic Review Management (PERM) application process.
Some persons can receive permanent resident status based upon employment without first obtaining labor certification from the Department of Labor. Those persons file an immigrant visa petition directly with USCIS providing evidence of their qualifications under one of the classifications described below including Extraordinary Ability, Outstanding Researchers, Multinational Managers/Executives, National Interest Waivers, Schedule A Cases, Physicians or Investors. The ability to bypass labor certification often saves substantial time and expense for the employer and the employee. Also, under limited circumstances, it is possible to obtain permanent resident status without either labor certification or an offer of employment. This document reviews the basic requirements to obtain permanent resident status without labor certification and those special circumstances when a job offer is not required.
The vast majority of persons who obtain permanent resident status based upon employment must first obtain a certification from the United States Department of Labor (DOL) that their employer has tested the labor market and has been unable to find qualified, willing, able, and available U.S. workers. This process, which is known as labor certification or PERM, usually involves the placement of recruitment in various media over several months. Thereafter, the employer must document all applicants who applied and the lawful, objective, job-related reasons for each applicant’s rejection.
Despite the DOL’s initial intention to adjudicate PERM applications within a few weeks, applications now take in excess of eleven (11) months for approval; if the DOL requests additional information, which happens frequently, the application will take years to adjudicate. It is only upon approval of the PERM application that an individual’s employer may file an immigrant visa petition with United States Citizenship and Immigration Services (USCIS).
Some foreign nationals can receive permanent resident status based upon employment without first obtaining labor certification from the DOL; some individuals also may not need a specific offer of employment. Those persons can immediately file an immigrant visa petition with USCIS. Provided the priority date for their green card preference category is current, they also may immediately pursue the last step of the green card process through USCIS (concurrently with the petition) or at a U.S. consulate abroad (after petition approval). Filing directly for an immigrant visa often saves substantial time and expense for the employer and the employee.