Re: From E3 to GC


How someone qualifies or pursues a green card is different in each
case. Some qualify based on a family relationship while others
through an employment-based option. What your non-immigrant status is
does not necessarily affect how you qualify for a green card.

Assuming you would need to qualify for a green card through a job
offer, for most individuals, it involves a three-stage process:

DESCRIPTION OF THE LEGAL PERMANENT RESIDENCY PROCESS

The permanent residence process includes a three-part procedure
involving the U.S. Department of Labor (DOL), Citizenship and
Immigration Services (USCIS), and the U.S. Department of State (DOS).
The following are the three stages:

Stage I: DOL ââ?¬â?? Application for Employment Certification (PERM)

This stage involves the submission of an application for employment
certification to the labor department. The PERM process involves
showing that the wage offered to the alien will not adversely affect
the wages and working conditions of other U.S. workers in similar
positions and that there are no U.S. workers who are able, willing and
qualified to work in the position offered. The DOL�s review
includes an examination of the prevailing wages paid to U.S. workers
in the position offered, and a ââ?¬Å?testingââ?¬Â? of the market
place for potential applicants through advertising and newspapers and
magazines, as well as a posting of a notice of job availability at the
employer�s place of business.

Stage II : USCIS - Petition for Immigrant Worker (I-140)
This stage involves the submission of a petition to the USCIS, which
makes a review of the alien's education and work experience to
determine if the alien qualifies for the position. Proof of the
alien's education and experience is required, which may include
documents such as letters from previous employers, diplomas,
membership of professional association certificates, etc. These
documents must prove that the alien possesses the requisite minimum
requirements to perform the job duties as described in the AEC.

Stage III : Application for Permanent Residence (2 Options)

Option 1: DOS - Immigrant Visa Processing (IVP) (recommended)

This stage involves the submission of personal information about the
alien and their family members to the U.S. Consulate in the alien's
home country. Proof of birth, marriage, divorce, as well as a police
report, submission of a medical examination, and discharge certificate
from the military, if applicable, are required. These documents are
provided to a consulate officer at an interview where the alien is
issued an immigrant visa for admission to the United States as a
permanent resident.

Or


Option 2: USCIS - Adjustment of Status (ADJ)

This stage is done by petition to the nearest service center of USCIS.
Simultaneous with filing this petition for ADJ, we also file for
permission to travel pending adjustment approval AND for employment
authorization pending completion of the process. Until the employment
authorization document and the travel permits are actually issued
(approximately 90 days after filing) the alien and his/her family are
restricted from leaving the U.S.


** STAGE II AND STAGE III, OPTION 2, MAY ALSO BE DONE
AT THE SAME TIME**

Concurrent Filing: USCIS Form I-140, Immigrant Petition, is
simultaneously filed with Form I-485, Application to Adjust Status.
Both forms, together with the appropriate filing fees and required
supporting documentation, are filed with the regional USCIS Service
Center having jurisdiction over the beneficiary�s place of
work. Additionally, Form I-131, Application for Advance Parole
(travel authorization), and Form I-765, Application for Employment
Authorization, may also be filed at the same time. Interim work
permits and travel permission (advance parole) benefits available to
each family member.

The benefits of this option include the preservation of status based
on the I-485 filing for those whose temporary visa status will soon
expire and relief from an obligation to maintain or renew temporary
visa status, such as TN, H-1B, or L.

The first stage is the foundation of the green card. It is known as
labor certification and the current process is known as PERM.

For most foreign nationals, the labor certification process, which is
conducted by DOL, is the first step in the three-step process of
obtaining employment-based lawful permanent residence (LPR) status.
The second stage of the LPR process is the I-140 Immigrant Petition,
filed by the employer with USCIS. The third stage is the
employee�s application for permanent residency, filed either as
an Adjustment of Status application with USCIS, or through the
appropriate U.S. consulate abroad. There are specific challenges at
each stage of processing, and this memo focuses specifically on those
presented by labor certification itself.

The legal premise of labor certification applications (commonly
referred to as ââ?¬Å?labor certsââ?¬Â?) is that the employer must
prove that there are no U.S. workers (this means U.S. citizens and
U.S. permanent residents) who are available for the position who meet
the requirements for the position.

Labor certification is the exception, not the rule. The labor
certification program was designed for the unusual circumstance where
there are not enough U.S. workers available for a particular position.
The U.S. economic boom in the 1990�s changed things for a short
period of time, such that most employees were able to obtain labor
certs for professional employees without much trouble. That was,
however, a brief anomaly in the course of the history of the labor
certification program. The government sees the H and L temporary
worker visa programs as just thatââ?¬â??the worker is here
temporarily for five to seven years and then returns to his or her
home country.

Filing a labor cert does not mean that the labor cert will be approved
or that permanent residence will be granted. A labor cert cannot be
approved unless DOL determines that there are no qualified U.S.
workers available for a particular job. Any employer or attorney who
promises a labor cert approval or permanent residence is not
explaining the entire picture. In addition, note that the employer
may in its discretion withdraw a labor certification application at
any time.

While the nature of the job market (and the number of U.S. workers
available) is a critical factor beyond our control that will impact
the success of a labor certification, careful planning and case
strategizing at the onset is also critical to maximize the likelihood
of success of any application.

Processing a Labor Certification Application

DOL sees every job filled by a foreign national with temporary work
authorization (e.g. H-1B or L-1 status) as an ââ?¬Å?empty
chair.� The employer must make every effort to try to hire U.S.
workers for open positions and must document its efforts. Only after
the employer submits proof of recruitment efforts that meet DOL
standards, and if DOL determines that there are no U.S. workers
available, can the labor certification be certified.

DOL is concerned with only one thing: protecting U.S. workers and
denying the labor cert if any U.S. worker meets the minimum
requirements (not the ideal, standard, or preferred requirements). A
difficult and frustrating fact is DOL is not concerned that a very
skilled and experienced foreign national is currently in the position.
DOL is not concerned that the foreign national may be more qualified
and a better employee than any U.S. worker applicant, and does not
care about the employer�s investment of time and training in
the incumbent foreign national. This, of course, conflicts with the
way any smart employer goes about hiring employees.


PERM (Program Electronic Review Management)

The PERM program, a new electronic processing system for labor
certification, took effect March 28, 2005, and is now the only method
for filing labor certification applications.

PERM allows employers to file electronically or by mail, although DOL
strongly prefers that employers file electronically. Applications
submitted by mail will be entered manually by contractors at DOL,
which creates a possibility of data entry errors and denial.
Employers who wish to submit their applications electronically must
register in advance with DOL, providing information regarding the
employer�s existence, physical location, and authorization to
do business. Registration is linked to the employer�s federal
Employer Identification Number (EIN), so companies that have divisions
with separate EINs will have an additional step at registration. In
order for PLG to assist with filing a labor certification, the
employer must also create a sub-user account for the appropriate PLG
attorney. PLG can assist with this registration process.

Form 9089, the labor certification application, is an attestation-
based system, which the employer submits under penalty of perjury.
The form requires the employer to provide detailed information about
the duties and responsibilities of the position, the salary and
prevailing wage, the minimum requirements for the position, and any
special skills required. In addition, the employer must provide
detailed information regarding recruiting efforts and results, and
must disclose any layoffs within the preceding six months in the
employee�s area of employment, if these were for the same or a
related occupation.


Duties and Responsibilities of the Position

DOL uses the O*Net system, which assigns all possible occupations to a
limited number of ââ?¬Å?standardââ?¬Â? classifications. In
addition, the O*Net system specifies what DOL views as the standard
requirements for each occupation. Where a position combines the
duties and responsibilities of two or more occupations, this must be
disclosed and justified on the application form. (For example, at a
small employer, the Office Administrator might also serve as Web
Developer.) In addition, the detailed duties and responsibilities of
the specific position directly affect the prevailing wage
determination. An accurate description of the duties of the position
is essential to preparing a successful labor cert.


Minimum Requirements

Labor certification requires the employer to set forth the minimum
requirements for the position, including any degree required, the
specific number of years of experience required (if any), and any
necessary training or special requirements. The employer may use only
these minimum requirements to evaluate candidates who respond to
recruitment for the labor cert. Any labor cert must meet the
following four tests:

1. The minimum requirements for the position must be the same as
for other similarly situated employees at the employer.

Example: If Software Engineer I�s are hired with a B.S. degree
and no experience, you cannot require a B.S. plus three years
experience for a Software Engineer I on the labor cert, even if the
foreign national had three years experience at the time of hire.

2. The foreign national must meet all of the minimum requirements
at the time of hire.

Example: The labor cert requires a master�s degree. If the
foreign national had not yet completed a master�s degree at the
time of hire, the foreign national will not meet the requirements for
his or her own labor cert, and will not be able to use it to gain
permanent residence. Finishing the master�s degree at a later
date does not change this result.

3. Experience gained at the employer in the position cannot be
counted as meeting the minimum requirements. This is a very
important concept. DOL�s position is that if the
employer is willing to hire and train a foreign national on the
job, it must be willing to offer a U.S. worker that same
opportunity.

Example: An employer hires a foreign national as a Customer Engineer
I with a B.S. and no experience. The foreign national then gains two
years experience on the job. The employer cannot claim that two years
experience is required for the position, because the foreign national
did not have two years experience when he or she was hired.

4. The minimum requirements cannot exceed what DOL determines is
standard for the position and the industry.

Example: A high-tech employer states on its labor cert that for the
position of Receptionist the minimum requirement is a master�s
degree in any type of engineering. The employer requires this degree
because the Receptionist must be able to answer technical questions
asked by callers. Even if all of the employer�s Receptionists
do indeed have master�s degrees, DOL will not allow that to be
a minimum requirement for a Receptionist because it is not the
standard requirement for the occupation.

Note that the O*Net standard requirements may be only two to four
years experience for many professional occupations. Where the
employer requires a higher level of experience or education, this must
be justified by arguing the ââ?¬Å?business necessityââ?¬Â? of the
additional requirements. Any business necessity argument will likely
subject the application to an audit.


Special Skills or Requirements

We frequently hear from employees, ââ?¬Å?My job requires special
skills and that means we can file a labor cert.� The
requirement of special skills alone does not mean that a labor cert
can be filed or that it will be approved. Remember, getting a labor
cert approved ultimately depends on whether there are U.S. workers
available.

If a position requires certain special skills, there may be fewer U.S.
workers available, which is advantageous for approval. Keep in mind,
however, that the employer cannot include any skills gained at the
petitioning employer as a minimum requirement. The foreign national
must be able to document that all skills required for the position
were obtained prior to working for the petitioning employer and prior
to the date the labor cert was filed.

Additionally, any labor cert that contains a long list of special
skills required will be seen by DOL as ââ?¬Å?tailoredââ?¬Â? to the
foreign national in an effort to exclude U.S. workers. Tailoring is
grounds for denial of the labor certification application. If DOL
sees the list of requirements as too restrictive, it may lead to an
audit or to denial of the application. In addition, special
requirements will often increase the prevailing wage determination for
the application.


Prevailing Wage

In filing a labor certification application, the employer commits to
pay the prevailing wage for the position at the time that permanent
residence is approved. The prevailing wage is determined by the
applicable State Workforce Agency (SWA), based on a four-level wage
system. The prevailing wage level may be increased based on education
and experience requirements that are higher than the
ââ?¬Å?standard;ââ?¬Â? supervisory responsibilities; or special
skills or requirements. Alternative wage surveys may be used in some
circumstances.


Effect of Layoffs

As part of its recruitment efforts, DOL expects an employer to offer
any ââ?¬Å?openââ?¬Â? or labor cert position to all laid off workers
who are qualified. The labor certification form requires the employer
to indicate whether there have been layoffs in the area of employment
in the same or a related occupation, and specifically asks whether the
employer has notified and considered laid off workers of the position.
Any layoff will likely trigger an audit. If the employer cannot
document that position has been offered to laid off employees, the
application will be denied.

For purposes of labor certification, a layoff is any termination of
one or more employees for reasons other than ââ?¬Å?good cause.ââ?¬Â?
A related position is one that involves 50% or more of the same duties
and responsibilities.


Recruitment under PERM

Under PERM, the employer must:

� Run two Sunday ads in the newspaper of general
circulation for the geographic area
� Post a notice at the worksite
� Use all internal media normally used in recruitment
� Place a job order with the State Workforce Agency.

Additionally, for professional positions (those for which a bachelor
degree is normally required), the employer must use three additional
recruitment methods from the following list of ten options:

� Job fair
� Employer web site
� Job search web site
� Employee referral program
� Local or ethnic newspaper
� On-campus recruiting/interviews
� Trade or professional organization
� Private employment firm
� Campus placement office (posted notice)
� Radio or TV ads.

As with any type of labor cert, the employer must demonstrate that
there are no U.S. workers available who meet the minimum requirements
for the position before submitting its labor certification
application. The employer must review all candidates who apply for
the position, and contact all who appear to be qualified. If
applicants are qualified, the application cannot be filed. For each
candidate who is not qualified, the employer must provide a lawful job-
related reason for the lack of qualification. Resumes must be
scrupulously tracked and retained in order to file the case.

Once recruiting is complete, the employer must summarize all of its
recruitment results. The employer must account for all applicants and
must specify the lawful reasons why candidates were rejected.
Although DOL will not supervise the recruitment, it will audit some
percentage of applications randomly. DOL may also audit any
applications that appear out of the ordinary (e.g. the
employerââ?¬â?¢s ââ?¬Å?business necessityââ?¬Â? requires minimum
requirements above the standard requirements in O*Net) or those
applications for which they have questions. When a case is audited,
the employer will have only 30 days to provide the requested
information, so the employer must prepare in advance for an audit in
every case.


Regards,

Under what circumstance can STAGE II and STAGE III be done at the
same time?

Thanks,
Martin

--
Posted via http://britishexpats.com
.

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