Most employment-based, permanent residence applications involve demonstrating that there is a shortage of U.S. workers to fill the vacancy. The process of demonstrating such a shortage is called ‘PERM Labor Certification’.
Wherever labor certification is involved, the total processing time can take an average of two to six months. Where labor certification is not required, it is normally easier to transfer a candidate to the U.S. using a non-immigrant visa, and then to apply for a green card once they have taken up their position.
PERM Labor Certification
Before you may obtain a green card for a foreign worker who does not qualify for exemption from labor certification, your company must demonstrate to the Employment and Training Administration (ETA) of the U.S. Department of Labor that the job is one for which there are not sufficient United States workers who are willing, qualified, and available at the time of the application for a visa.
The employer must also demonstrate that the employment of the foreign worker will not adversely affect the wages or working conditions of similarly employed workers in the United States.
Labor certification does not permit an alien to start work in the U.S. It is simply one of several prerequisites for the grant of an immigrant visa. An application for labor certification is made using official form ETA 9089. While no supporting documentation is required with the ETA 9080, the employer may need to provide additional supporting documentation upon request.
The following may obtain a Green Card without labor certification:
- Aliens of Extraordinary Ability in Business, Sciences, Arts, Education, or Athletics
- Outstanding Professors/Researchers
- International Executives/Managers
- Exceptional Ability in the Sciences, Arts, Business with a “National Interest Waiver”
- Registered Physical Therapists
- Registered Professional Nurses
Aliens of Exceptional Ability in Business, Sciences, Arts, or Education.
Applications for a green card for aliens of exceptional ability should be supported by Labor Certification, unless waived (see above), and at least three (and preferably more) of the following:
- An official academic record showing that the candidate has a degree, diploma, or certificate; or a similar award from an institution of learning relating to the area of exceptional ability;
- Letter(s) from current or former employers showing that the candidate has at least ten years of full-time experience in the occupation for which s/he is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership of professional associations;
- Evidence of recognition for achievements and significant contributions to the industry of field by peers, governmental entities, or professional, or business organizations.
International Executives and Managers:
A multinational corporation with an established U.S. office (i.e., one that has been in existence for at least one year), may obtain a green card for international executives who have worked in an executive or managerial capacity for a non-U.S. branch of the corporation for at least one year in the last three.
Applications under this category will generally need to be supported by:
- A Letter from the employer confirming employment outside the US, the nature of the previous employment, and the dates of employment.
- If relevant, a letter from the U.S. employer confirming the nature of the previous employment, and the dates of employment.
- A job description for the prospective employee.
- Tax returns showing employment of the candidate by the same employer outside of the U.S. for at least one year in the last three years.
- Accounts for the employer in the U.S.
Professionals with advanced degrees
Subject to labor certification, members of the professions who hold advanced degrees may practice in the US.
Applications for a green card for a Professional with an advanced degree should be supported by Labor Certification, and an official academic record showing that the candidate has a U.S. advanced degree (or an equivalent foreign degree); or an official academic record showing that the candidate has a U.S. baccalaureate degree (or an equivalent foreign degree) with letters confirming five years of post-qualification experience.
Subject to labor certification, any qualified member of the professions may practice in the US.
Their applications will take longer to process than those of professionals with advanced degrees. Applications for a green card for a Professional should be supported by a labor certification and:
- Evidence that the alien holds a U.S. Baccalaureate Degree or equivalent foreign degree;
- Evidence that a Baccalaureate Degree is required for entry into occupation. ( This could be a letter from a professional organization confirming the requirements for admission to the profession.)
For U.S. immigration purposes, a ‘skilled worker’ is one who will be engaging in an occupation that requires at least two years of training or experience. The worker must have the relevant experience, and a shortage of those particular skills must be demonstrated.
It will take longer to process an application for a Skilled Worker than it takes for a professional. Applications for a green card for a skilled worker should be supported by a labor certification, and evidence that the alien meets the requirements of the labor certification — such as educational qualifications, and letters confirming employment and/or training. The minimum requirement is at least two years of training or relevant experience.
Where labor certification has demonstrated a shortage of any particular type of skills in the U.S., it is possible for those with that skill to be granted a green card.