Employment Based Greencards

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Employment Based Greencards

• Dylan Sugiyama
• International Employment Specialist
• North Carolina Office of State Personnel

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Agenda

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

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Agenda

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

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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)

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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

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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)

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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/bulleti
  n_2757.html

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Visa bulletin
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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

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LABOR CERTIFICATION

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

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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

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LABOR CERTIFICATION

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

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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 employers clients/employees

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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

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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

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Minimum Job Requirements

• Job requirements must represent employers actual
  requirements
• Employer must not have hired people with less
  training or experience for similar jobs

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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

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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

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Minimum Job Requirements

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

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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)

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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

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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

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Prevailing Wage

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

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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

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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

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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.

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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

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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

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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

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PERM Audits

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

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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)

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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

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PERM

• North Carolina SWA
• Employment Security Commission of North Carolina
• Attn Applicant Services Unit
• P.O. Box 27625
• Raleigh, NC 27611
• [phone]
• [phone] FAX
• FedEx/UPS Deliver to
• 700 Wade Avenue
• Raleigh, NC 27605

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PERM

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

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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

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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

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PERM-Job Advertisement

• Demonstrate a logical nexus between the
  advertisement and the position listed on the
  employers application
• Include
• Description of vacancy (job title is usually
  sufficient)
• Name of employer
• Geographic area of employment
• Means to contact employer

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PERM-Job Advertisement

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

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PERM-Job Advertisement

• Employers 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

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PERM-Job Advertisement

• Professional Advertising Standards
• Used if occupation is listed in Appendix A in the
  PERM regulations
• (http//a257.g.akamaitech.net/7/257/2422/01apr2005
  1500/edocket.access.gpo.gov/cfr_2005/aprqtr/pdf/20
  cfr656.17.pdf)
• Generally, any position requiring at least a
  bachelors degree or equivalent.

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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

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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

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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

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PERM-Job AdvertisementProfessional Positions

• Additional recruitment steps (Employer must
  select three)
• Job fairs
• Employers web site
• Job search web site other than employers
• On-campus recruiting
• Trade or professional organizations
• Private employment firms
• Employee referral program
• Campus placement office
• Local/ethnic newspaper
• Radio/television advertisements

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PERM-Job AdvertisementProfessional Positions

• Recruitment/ Advertisement requirements vary
  slightly for university professors
• See for details 20 CFR 656.18

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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.

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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

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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

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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

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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

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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

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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.

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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

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What is an outstanding professor or researcher
(cont.)?

• Published material in a professional publication
  written by others about the aliens work
• Participation as a judge of others work in an
  allied field
• Original contributions to the field
• Authorship in the academic field

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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

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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

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Professors must also

• Possess 3 years of teaching or research
• Be employed in a tenure track or permanent
  position

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What is extraordinary ability?

• Evidence of a one time internationally recognized
  achievement

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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

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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 aliens work at an artistic
  exhibition or showcase

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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.

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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

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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.

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Advanced degrees and exceptional abilities

• Labor certification is a prerequisite, unless a
  waiver of the requirement is in the national
  interest

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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)

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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

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Professionals

• Approved labor certification
• Bachelors degree or foreign equivalent
• Evidence that bachelors degree is required for
  the position
• Proof of employers ability to pay the proffered
  wage

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Unskilled labor.

• Approved labor certification
• Evidence that the beneficiary meets the job
  requirements
• Proof of the employers ability to pay the
  proffered wage

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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

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Fifth Preference Employment creation

• Aliens who establish a business in the United
  States and employ American workers as a result

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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

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Schedule A

• Wages and working conditions of American workers
  will not be adversely affected by the employment
  of an alien

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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

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Schedule A

• List of Schedule A occupations can be found at
• 20 CFR 656.15

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Schedule A

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

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Schedule A

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

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Employers 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

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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

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Immigrant Visa Petitions

• Use form I-140, and file with the United States
  Citizenship and Immigration Services

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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

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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

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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

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• QUESTIONS?