Employment Based Greencards

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

Agenda • Background • Labor Certifications • Minimum Job Requirements • Prevailing Wage • PERM

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

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)

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

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)

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

Visa bulletin

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

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

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

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

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

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

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

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

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

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

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

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)

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

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

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

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

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

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.

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

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

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

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

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)

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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.

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

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

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

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

Employment Based Greencards