Sponsoring Foreign Workers for Permanent Immigration
-by: Rabia Anwar Chaudry, Esq. of the Washington DC bar only.
U.S. immigration is the ultimate American dream that, unknown to most Americans, lives in the hearts and minds of millions of people around the world. For people who travel to the United States, it is usually an emotionally and physically draining experience to leave their homeland in hopes of starting a life over in this land of opportunity. Often times, they sell assets, leave behind beloved family members, and travel through numerous other countries to finally land foot in the United States. Some wait years for a visa to arrive legally, some risk it all to get here illegally. Either way, it is an arduous journey by any measure, but the most difficult aspect is usually faced when foreign nationals arrive here.
People arriving from other countries are usually unaware of the complications involved in trying to get settled in the U.S. The biggest obstacle is generally gaining the authorization for employment, which is only granted to a certain qualifying aliens.
A simplified overview of the immigration process is such: to become an immigrant in the U.S., there are only a limited number of avenues. Family sponsorship (by a U.S. citizen or permanent resident), employment sponsorship, and asylum are the most common ways aliens are granted permanent immigration. For family and employment sponsorship, a petition is filed by the sponsor (petitioner) for the alien (beneficiary). Once this petition is approved, a visa will become available for that alien on a date known as the “priority date”. Depending on the type of sponsorship, the priority date usually takes years to become available or “current”.
For those with no appropriate family sponsors, employment sponsorship is sometimes the only way to become a permanent resident (popularly known as a “greencard” holder). Within employment sponsorship for most categories, the process follows one general path:
1. Employer obtains a “labor certification” from the Department of Labor
2. Employer files a petition for the employee
3. Once petition approved, a visa priority date is assigned
4. Upon the visa date becoming current, the alien can file for their permanent residence (adjustment of status)
5. After five years of holding permanent residence, the alien may now apply for U.S. citizenship
This entire process takes years for some categories of employment, but the most recent change implemented in 2005 from the Department of Labor has revamped the entire labor certification process and cut the time down drastically.
In broad terms, the role of the Department of Labor within the employment sponsorship process has always been to certify that there are not enough U.S. citizen workers who are available (able, willing, qualified) to fill given positions and that the employment of foreign nationals will not have an adverse affect on the wages or conditions of U.S. workers in similar situations or professions. The result of a successful certification is what is known as a labor certification.
On December 27, 2004, the U.S. Department of Labor published a final regulation known as PERM (Program Electronic Review Management). This regulation has been years in the making and undergone many evolutions. The final result became effective on March 28, 2005. Now, the labor certification process that generally took 2-4 has been expedited to within a number of months, weeks even. So an alien filing for a labor condition application under PERM will no longer have to wait years just to be able to file an immigration petition.
As the name of the program suggests, labor applications can be electronically filed. This option was never previously available and involves two steps:
The employer must first file for a prevailing wage determination (PWD) request with the local State Workforce Agency (SWA) and then file for the labor certification with a centralized processing center. A PWD is basically a request to the SWA to determine what wage the employer must pay the employee/beneficiary in order to qualify for a labor certification. The policy reasons for this are to preserve economic stability so that an entire population of aliens are not paid lower wages than U.S. citizen counterparts. Under the old laws, an employer was allowed a 5% variance above or below the PWD to pay the alien employee. PERM, however, requires that the employer pay no less that 100% of the PWD.
The period before an employer may file for a labor certification is an important one. The PERM regulation has strict rules governing the recruitment process, during which the employer must advertise and post notices for the employment position. Once this phase is over, the employer must submit to the Department of Labor that the recruitment did not yield any qualified U.S. citizen candidates. Once recruitment is over and the PWD has been obtained, the employer may file for the labor certification.
As employers face more difficult times hiring foreign workers under temporary work visas, PERM and the greencard process offers a viable alternative for meeting the shortage of workers in all sectors of the US labor market. The PERM regulations have many complexities and variations depending on the type of employment sponsorship involved. As always, consult with an attorney regarding your specific situation.
-Rabia Anwar Chaudry, Esq. is the founding attorney of Chaudry Immigration Law, LLC. This article is informatory in nature and not meant to constitute legal advice. For legal advice, always consult an attorney with regard to your particular situation.