Employment Based Greencards

1. Employment Based Greencards Dylan Sugiyama International Employment Specialist North Carolina Office of State Personnel

2. Agenda Background Labor Certifications Minimum Job Requirements Prevailing Wage PERM

3. Agenda Eligibility Categories Job Advertisement Visa Petitions-Forms I-140 & I-485 Processing

4. Background Legal basis for filing In order to determine whether or not an alien is eligible to be admitted to the United States as a Permanent Resident, see INA sec. 245 (8 U.S.C. 1255)

5. Background What is an Immigrant? A foreign national who has been authorized to live and work PERMANENTLY in the United States. If you are an employer who wishes to sponsor a person for permanent residency, you must go through a multi- step process

6. What is the greencard process? The United States Department of Citizenship and Immigration Services must approve an immigrant petition that was filed for an employee by an employer 2. In most cases a U.S. employer must complete a labor certification request (form ETA 9089)

7. What is the greencard process (cont.)? The State Department must issue a visa number. This number is assigned based on the date of the visa application (either the labor certification or the I-140 if an LC is not required). Numbers are allocated based on country of origin. http://travel.state.gov/visa/frvi/bulletin/bulletin_2757.html

8. Visa bulletin

9. LABOR CERTIFICATION Establishes that there are not sufficient U.S. workers who are able, willing, qualified and available at the time and place where the alien is to be employed Demonstrates that the alien, if qualified, will not adversely affect wages or working conditions of similarly employed U.S. workers

10. LABOR CERTIFICATION Must be a bona fide job opportunity Job must be currently available Open to U.S. workers and permanent residents

11. LABOR CERTIFICATION Job can not be available as a result of a strike or other form of work stoppage Job title must correspond to one described in the Dictionary of Occupational Title Codes. http://www.occupationalinfo.org/contents.html

12. LABOR CERTIFICATION Employer may not describe position in unduly restrictive terms May not impose requirements that are not a legitimate part of the job

13. LABOR CERTIFICATION Language requirement can only be used if: The employer can persuasively demonstrate that the job can not be performed without the ability to speak that particular language The nature of the occupation requires the ability, i.e. translator There is a need to communicate with a large majority of the employer�s clients/employees

14. LABOR CERTIFICATION Employer must demonstrate that it can afford to hire the employee The financial ability to hire must exist at the time of the filing of the labor certification, not at some future date Ability to pay must continue to exist until the time that the employee actually receives his or her greencard

15. Processing Upon the receipt of the application, the DOL will: Verify the existence of the employer Verify that the employer has employees on payroll Audit as necessary to maintain program integrity

16. Minimum Job Requirements Job requirements must represent employer�s actual requirements Employer must not have hired people with less training or experience for similar jobs

17. Minimum Job Requirements If alien is already employed by the petitioner, DOL will only consider experience/training that the alien possessed at the original time of hire

18. Minimum Job Requirements Alien may have gained some or all of the required experience from the petitioning employer if that experience was acquired in another, not substantially comparable position

19. Minimum Job Requirements Substantially Similar - Job requires completion of the same duties more than 50% of the time

20. Job Requirements Working conditions must be normal to the occupation in the area and in the industry If the job requirements exceed the �normal� requirements (as defined by the DOL), then the employer must be able to demonstrate a �business necessity� for those higher requirements (e.g., degree or experience)

21. Lay Offs Within 6 months of Greencard Sponsorship Employer must: Document that it has notified all laid off employees of the open position Consider any applicant who has been laid off from that position Consider any applicant who has been laid off from a related position

22. Lay Offs Within 6 months of Greencard Sponsorship If a US candidate lacks particular skills that may be acquired within a reasonable period of time, it is unlawful to reject that candidate

23. Prevailing Wage Prior to filing Labor Certification, the employer must request a prevailing wage statement from the State Workforce Agency (SWA)

24. Prevailing Wage Prevailing wage documentation is NOT included with the Labor Certification application Must be retained on file for a period of 5 years from the date of filing the LC application

25. Prevailing Wage Wage offered to alien employee must be 100% of the prevailing wage During recruitment period, employer may not offer less than prevailing wage to U.S. applicants

26. Program Electronic Review Management (PERM) New electronic Labor Certification adjudication system (implemented in 2005). Estimated 45-60 days adjudication time versus the previous several months to several years under former process.

27. PERM Large reduction is processing time is attributable to: Employers ability to complete application online Automated application processing Elimination of State Workforce Agencies� required role in recruitment

28. PERM Audits Audits Based upon various criteria, some Labor Certification Applications will be selected for audit Some applications will be randomly selected for audit, even if they do not meet the general audit criteria

29. PERM Audits If an application is selected for audit: Employer will be required to submit documentation of information stated in the application, including recruitment documentation. Documentation will be reviewed by ETA Personnel If employer does not submit a timely response, the application will be denied

30. PERM Audits Auditor may order supervised recruitment in order to verify that the employer is following the mandated recruitment procedures

31. Review of Labor Certification Decisions Employers may request a review of: Prevailing wage determination made by the SWA Denial or revocation of the labor certification Review is conducted by the Board of Alien Labor Certification Appeals (BALCA)

32. PERM Requires employers to conduct recruitment before filing Labor Certification State Workforce Agencies (SWA) will provide prevailing wage determinations to employers Employers will be required to place a job order with the SWA

33. PERM North Carolina SWA Employment Security Commission of North Carolina Attn: Applicant Services Unit P.O. Box 27625 Raleigh, NC 27611 (919) 733-4896 (919) 733-3010 FAX FedEx/UPS Deliver to: 700 Wade Avenue Raleigh, NC 27605

34. PERM Job Order The NC SWA will inform the employer of the proper procedures for filing a compliant job order

35. PERM-Job Advertisement Most employers will be able to identify newspapers or journals that are most appropriate Employer must be able to document that the chosen journal or newspaper is circulated to the best targeted audience

36. PERM-Job Advertisement Generally Newspaper advertisements must run on two different Sundays, 30-180 days prior to filing the application Journal advertisement must be done within 30-180 day window

37. PERM-Job Advertisement Demonstrate a logical nexus between the advertisement and the position listed on the employer�s application Include: Description of vacancy (job title is usually sufficient) Name of employer Geographic area of employment Means to contact employer

38. PERM-Job Advertisement If employer includes job duties in advertisement, description on form ETA 9089 must match

39. PERM-Job Advertisement Employer�s physical address need NOT be included in advertisement, just the city and state. Offered wage need NOT be included in advertisement, but if it does appear, it can not be below the prevailing wage

40. PERM-Job Advertisement Professional Advertising Standards Used if occupation is listed in Appendix A in the PERM regulations (http://a257.g.akamaitech.net/7/257/2422/01apr20051500/edocket.access.gpo.gov/cfr_2005/aprqtr/pdf/20cfr656.17.pdf) Generally, any position requiring at least a bachelor�s degree or equivalent.

41. PERM-Job Advertisement Professional Positions Employer must conduct recruitment within 6 months of filing the application for alien employment certification Employer must maintain documentation of this recruitment, and be prepared to submit it to a certifying officer in the event of an audit

42. PERM-Job AdvertisementProfessional Positions Mandatory recruitment steps Job order-Employer must place a job order with the State Workforce Agency serving the area of intended employment. Job order must be placed for at least 30 days Advertisement in newspaper or professional journals Two different Sundays If no Sunday edition, must use edition with widest circulation

43. PERM-Job AdvertisementProfessional Positions In order to demonstrate that advertisement met requirements, the employer must: Furnish newspaper clippings in which the advertisements ran In lieu of one Sunday edition, the employer may place an advertisement in an applicable professional journal, and provide a copy of the page on which the advertisement appeared

44. PERM-Job AdvertisementProfessional Positions Additional recruitment steps (Employer must select three): Job fairs Employer�s web site Job search web site other than employer�s On-campus recruiting Trade or professional organizations Private employment firms Employee referral program Campus placement office Local/ethnic newspaper Radio/television advertisements

45. PERM-Job AdvertisementProfessional Positions Recruitment/ Advertisement requirements vary slightly for university professors See for details 20 CFR 656.18

46. Professors Under special handling rules, a University is not required to demonstrate that there were no qualified US citizen or permanent resident workers available for the position, but only that the appointee was the best qualified applicant. The university can usually meet this requirement by presenting the details of the actual departmental recruitment process that led to the faculty appointment. Applications under special handling rules must be filed with the Department of Labor within eighteen months of the sponsored employee's selection for the position.

47. PERM-Job AdvertisementNon-professional Positions For non-professional positions, employer must: Place job order Two newspaper advertisements within six months of filing the application Must be done at least 30 days, but not more than 180 days before application

48. PERM-Job AdvertisementNon-professional Positions Newspaper Ad on two separate Sundays If no Sunday edition, place ad in edition with largest circulation Must save �tear sheets� as proof that advertisement ran

49. Recruitment Report Describe the recruitment steps undertaken and results achieved Number of hires, and number of US workers rejected Lawful reasons for rejection of US workers Certifying officer may request rejected workers� resumes/applications sorted by reasons for rejection

50. Recruitment Report Rejecting US workers for lacking necessary skills is not lawful if that applicant could gain the skills within a reasonable period of time on the job

51. Who is eligible? Aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers Unskilled Labor Special Immigrants such as religious workers

52. First Preference: Extraordinary Ability, Multinational Managers/ Executives, Outstanding professor or researcher Professors must have at least 3 years of experience in teaching or research in an academic area.

53. What is an outstanding professor or researcher? Person must be recognized internationally, and must submit evidence of at least two of the following: Receipt of major prizes or awards for outstanding achievements Membership in associations which require outstanding achievements

54. What is an outstanding professor or researcher (cont.)? Published material in a professional publication written by others about the alien�s work Participation as a judge of others� work in an allied field Original contributions to the field Authorship in the academic field

55. Outstanding professor or researcher (cont.) Recognition must be for one of the following reasons: He or she is in a tenure track position at a university or institution of higher education to teach in that academic area He or she is in a comparable position at a university or institution of higher education to conduct research

56. Outstanding professor or researcher (cont.) He or she is in a comparable position to conduct research for a private employer that employs at least three persons in a full time research activities and which achieved documented accomplishments in an academic field

57. Professors must also� Possess 3 years of teaching or research Be employed in a tenure track or permanent position

58. What is extraordinary ability? Evidence of a one time internationally recognized achievement

59. What is extraordinary ability (cont.)? At least three of the following: Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor Membership in associations in the field which require outstanding achievements as judged by national or international experts

60. What is extraordinary ability (cont.)? Published material about the alien in professional or major trade publications Participation as a judge of the work of others Authorship of scholarly articles in the field Display of the alien�s work at an artistic exhibition or showcase

61. What is extraordinary ability (cont.)? Evidence must be submitted that demonstrates that the alien is coming to the United States to continue work in the area of expertise.

62. What is extraordinary ability (cont.)? Evidence that the alien has commanded a high salary or other high remuneration for services Evidence of commercial successes in the performing arts

63. Second Preference: Workers with advanced degrees or exceptional ability Aliens who are members of the professions holding advanced degrees or their equivalent and aliens who, because of their exceptional ability in the sciences, arts, or business, will substantially benefit the national economy, cultural or educational interests or welfare of the United States.

64. Advanced degrees and exceptional abilities� Labor certification is a prerequisite, unless a waiver of the requirement is in the national interest

65. Advanced degrees and exceptional abilities� In addition to a labor certification, applicants must possess at least 3 of the following: Proof of degree Proof of at least 10 years of job experience (for EA) Any required professional license Evidence of exceptional remuneration (for EA) Evidence of exceptional peer recognition (EA)

66. Third Preference: Professionals, skilled workers and other workers Aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years of experience i.e. Unskilled worker who can perform labor for which qualified workers are not available in the United States

67. Professionals� Approved labor certification Bachelor�s degree or foreign equivalent Evidence that bachelor�s degree is required for the position Proof of employer�s ability to pay the proffered wage

68. Unskilled labor�. Approved labor certification Evidence that the beneficiary meets the job requirements Proof of the employer�s ability to pay the proffered wage

69. Fourth Preference: Special workers/ religious occupations Aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination Has a nonprofit organization in the U.S. Will be working in a religious vocation at the request of the religious organization

70. Fifth Preference: Employment creation Aliens who establish a business in the United States and employ American workers as a result

71. Schedule A Lists occupations for which a determination by the DOL has been made that there are not sufficient U.S. workers who are able, willing, qualified and available

72. Schedule A Wages and working conditions of American workers will not be adversely affected by the employment of an alien

73. Schedule A Application for labor certification for Schedule A occupation is not filed with a Department of Labor processing center, but in duplicate with a Department of Homeland Security Office

74. Schedule A List of Schedule A occupations can be found at: 20 CFR 656.15

75. Schedule A Examples of Schedule A occupations Nurse Physical Therapist Exceptional ability in the performing arts

76. Schedule A If an application under Schedule A is denied, the employer may not file a Labor Certification application using the traditional process

77. Employer�s ability to pay Annual reports Federal tax returns Audited financial statements Agency budget or statement demonstrating that money has been allocated for the vacant position

78. Foreign language documents Employer must Provide a full English translation Translator must certify that he or she is competent to translate the foreign language into English

79. Immigrant Visa Petitions Use form I-140, and file with the United States Citizenship and Immigration Services

80. I-140 Application Application that employer must submit in order to apply for Immigrant worker Approved Labor Certification DOES NOT grant the alien permission to work Approved Labor Certification must accompany I-140 petition

81. Greencard Petitions-Required Forms I-485, Application to register permanent residence G-325A, Biographic information Approved I-140 or concurrently filed I-140 I-693, Medical examination of alien Additional required documentation as noted on forms

82. I-485 Petition for greencard (adjustment of status to that of a permanent resident) Alien may submit I-140 and I-485 simultaneously, but I-140 must be approved before action will be taken on I-485

83.  QUESTIONS?