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Secrets of Winning a Green Card in 2014 through PERM Labor Certification

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PERM labor certification is the most common way for a foreign national to get permanent residence (green card) through a job offer. Whether you are a sponsoring employer or sponsored employee, now is …

PERM labor certification is the most common way for a foreign national to get permanent residence (green card) through a job offer. Whether you are a sponsoring employer or sponsored employee, now is the time to learn the tips and tools to navigate the process more quickly and smoothly in 2014.

In this informative webinar, you will learn:

The questions to ask to determine whether the PERM process is right for you and your company so you don't waste precious time and resources
The legal pitfalls to avoid that can slow down the process and cost you time and money
Your rights and obligations as a sponsored employee or sponsoring employer
And more....!

Published in Law , Technology , Business
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  • 1. Secrets to Winning a Green Card through PERM Labor Certification
  • 2. Ask Questions at Any Time Go to your Q&A panel at the right sidebar. Type and send your question. Questions answered throughout presentation and during the Q&A session.
  • 3. PowerPoint Slides Download Download and print the slide handout to record notes
  • 4. Ann M. Badmus Angela M. Lopez Thu T. Nguyen Presenters www.cowlesthompson.com
  • 5. Green Card Application Procedures after PERM Approval Overview of PERM Labor Certification and Permanent Residence Process PERM Labor Certification Nuts & Bolts Questions & Answers Webinar Agenda 1 2 3 4
  • 6. Overview
  • 7. What is PERM? PERM = PROGRAM ELECTRONIC REVIEW MANAGEMENT U.S. Department of Labor Step 1 of the Green Card process
  • 8. Who Needs PERM? All foreign national workers who are employer-sponsored for a Green Card must undergo labor certification except: • EB-1 Multinational Executive/Manager, Outstanding Researcher, Extraordinary Ability Worker • EB-2 National Interest Waiver Worker • EB-4 Special Immigrant Worker
  • 9. Special Considerations Before You Start Employee’s ownership status in sponsoring company, i.e. shareholder, partner, or member Employee’s family relationship to owners of the sponsoring company Travel requirements of the position Layoff of US workers in the same position within six months of application Anticipated changes in position or work locations
  • 10. Employment Based (EB) Categories EB-2 Advanced Degree Professional EB-3 Professional Worker EB-3 Skilled Worker EB-3 Unskilled Worker
  • 11. Choosing the Right Category Master’s degree or bachelor’s degree plus five years progressive experience is required for the position Employee has the required degree (or foreign equivalent) and any required experience Experience equivalency ≠degree requirement EB-2 Advanced Degree Professional
  • 12. Choosing the Right Category (cont.) EB-3 Professional Bachelor’s degree (Professional) or two years postsecondary education or experience (Skilled Worker) required by position Employee possesses required degree (or foreign equivalent), education, or experience EB-3 Skilled Worker
  • 13. Visa Bulletin – July 2014 Employment- Based All Chargeability Areas Except Those Listed China- Mainland Born India Mexico Philippines 1st Current Current Current Current Current 2nd Current 07/01/09 09/01/08 Current Current 3rd 04/01/11 10/01/06 11/01/03 04/01/11 01/01/09 Other Workers 04/01/11 01/01/03 11/01/03 04/01/11 01/01/09 Priority Date = Date of PERM filing
  • 14. PERM Nuts and Bolts
  • 15. Regular PERM Process Applies to all full-time workers other than university teachers, nurses & physical therapists Recruitment required within 180 days of application to test the market for minimally qualified U.S. workers, i.e. U.S. citizens or permanent residents Must pay prevailing wage or higher once foreign worker obtains permanent residence
  • 16. Duties and qualifications must be customary and usual for the occupation. Job requirements cannot be tailored to the foreign worker (beneficiary) qualifications. No unduly restrictive job requirements unless “business necessity” is proved, e.g. foreign language requirement. Define the Position
  • 17. Determine the Prevailing Wage Early Submit ETA9141 as soon as possible and before advertising if wage is an issue Locate alternate wage surveys, if OES wage too high Check OES wage survey http://www.flcdatacenter.com Establish job description, including educational and experience requirements
  • 18. Advertisement and Recruitment Job order with State Workforce Agency (SWA) for 30 days Two Sunday newspaper ads For professionals, 3 additional ads Notice of Filing or job availability posted for 10 business days Recruitment Report and Resumes
  • 19. Advertisement and Recruitment (cont.) Ads must identify employer accurately and direct responses to employer Ads must describe the job opportunity sufficiently to apprise applicants Ads must contain the geographic location of the job, e.g. Dallas, Texas Wage is not required in ads, but must equal or exceed prevailing wage if included
  • 20. Advertisement and Recruitment (cont.) Review and evaluate resumes upon receipt Timely contact with applicants, e.g. 7 -14 days of receipt of resumes Document applicant contacts or attempts to contact Record Recruitment Responses and Act Immediately
  • 21. Advertisement and Recruitment (cont.) Analyze qualifications of applicants against minimum requirements (not most qualified) Screen and interview based upon normal company process Provide objective and quantifiable reasons for rejections Record Recruitment Responses and Act Immediately
  • 22. Advertising and Recruitment (cont) Recruitment Recordkeeping Requirements Employers must maintain documentation of recruitment efforts for five (5) years from filing of labor certification Employers must prepare a detailed recruitment report that describes recruitment efforts Recruitment report must include number of applicants and reason for rejection of each applicant
  • 23. Optional Special Recruitment • For college/university teaching position where classroom teaching is involved • Labor certification application must be filed within 18 months from date of job offer letter • Single advertisement in national print journal or 30 days electronic advertisement
  • 24. Optional Special Recruitment (cont.) • Salary must meet or exceed prevailing wage • “Most qualified” standard of selection • Selection committee must document that foreign national is more qualified than US applicants • PERM recordkeeping requirements apply
  • 25. Schedule A Pre-Certification Nursing Registered Nurses, Nurse Practitioners, Advanced Practice Nurses Physical Therapy Physical Therapists (Bachelor degree or higher) •Pre-certified, no recruitment required except internal notice of filing •Salary must be equal to or higher than prevailing wage •Bypass Department of Labor and apply directly to USCIS
  • 26. Prepare for a DOL Audit •Recruitment log •Recruitment report •Prevailing wage determination •Notice of Filing, advertisements, job order •Documentation of business necessity for special requirements, e.g. foreign language PERM Audit File
  • 27. Prepare for a DOL Audit (cont.) PERM Audits Can Be Random or Triggered by: •Job duties not normal for occupation •Qualifying experience gained with sponsoring employer in comparable position •Foreign language requirements •Layoffs for same or similar position •Sponsored employee owns part of business or has family relationship with owner of business
  • 28. Employer Obligations QUICK FACT Must pay all PERM process costs, including attorneys’ fees and advertisement costs. Sponsored employee may NOT reimburse employer for any PERM associated expenses. QUICK FACT Must conduct good faith recruitment effort WITHOUT sponsored employee’s involvement. QUICK FACT Must confirm that no qualified, U.S. workers (citizens or permanent residents) responded to the recruitment.
  • 29. Green Card Process After PERM Approval
  • 30. Step 2 – I-140 Petition for Immigrant Worker Employer must file I-140 petition within 180 days of PERM approval Employer must prove ability to pay the offered wage (prevailing wage or higher) Sponsored employee’s qualifications must be documented, e.g. education, experience Premium processing option ($1225)
  • 31. Evaluate Ability to Pay Before PERM Process Begins Proof of current ability to pay offered wage can include: •A statement from the financial officer of the company, if 100 or more employees •Copies of the following documents for the year of and year preceding the labor certification, if fewer than 100 employees: •Annual Report •Federal Tax Returns •Audited Financial Statements
  • 32. Obtain Proof of Qualifications Before PERM Process Begins Education, training, and certifications must be completed before PERM is filed •Diplomas and/or transcripts •Training certificates •Certification letters or documents Experience required for position must be attained before PERM is filed •Detailed letters of experience from previous employers
  • 33. Step 3 - Immigrant Visa Application Priority date must be current, i.e. immigrant visa number available in the EB category Two processing options • Adjustment of Status petition (in the U.S.) – Form I-485 • Consular process (outside the U.S.) - Form DS-260 Quick Fact J-1 Waiver Physicians must complete three year medical service before applying for immigrant visa
  • 34. Adjustment of Status (I-485) Present in the U. S. in valid non-immigrant status and no status violations for more than 180 days I-485 filed separately for employee and family member with USCIS Employment Authorization Document (EAD)/Travel Authorization Document (Advanced Parole) Processing time – 6 months or more, depending upon priority date
  • 35. Consular Process (DS-260) DS-260 Form – file with Department of State (consulate/embassy) for employee and each family member International Travel required – Employee and family member must attend immigrant visa interview at the U.S. embassy located in home country Processing time – 6 months or more, depending upon priority date and consulate
  • 36. Tips for Fastest Processing Determine whether I-485 or DS-230 is best or only option before I-140 is filed File I-140 and I-485 applications concurrently, if priority date is current Use premium processing for I-140 petition, especially if consular processing Track cut-off dates against your priority date monthly at: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html
  • 37. Questions?
  • 38. What to Do Next? Facts of each case are different. The general information provided here should not be relied and is not legal advice. Consult with an experienced immigration attorney to get the right advice for your specific circumstances.
  • 39. Cowles & Thompson, PC 901 Main Street Suite 3900 Dallas, Texas 75202 214-672-2000 immigration@cowlesthompson.com www.cowlesthompson.com www.badmuslaw.com www.physicianimmigration.com How to connect with us