Employment-based application is the second most prevalent way of obtaining legal permanent residency in California after a family sponsorship. However, before qualifying for a green card, the foreign worker needs an American employer to sponsor them. The employer becomes the petitioner, while the foreign employee becomes the beneficiary.
Immigrating a worker through an employment application is difficult for both the petitioner and the beneficiary. As the petitioner or employer, you need an immigration attorney to understand and streamline the application. Below are the steps to sponsor a foreign worker for a green card.
Understanding Employer Sponsored Legal Permanent Residency
The U.S. government has many ways a foreigner can obtain a green card. One can become a lawful permanent resident by investing in a business in the country, being an immediate family member of an American citizen, or marrying an American citizen. The other option is employment-based sponsorship, where you, an American company or employer, are willing to sponsor permanent residency by offering employment to an immigrant worker.
Obtaining employer-sponsored permanent residency requires you to prove that you have no green card holder, citizen, refugee, or asylum willing, available, and skilled to do the job you are offering. The process of proving that you meet the requirements set by the law for the application is called labor certification.
Obtaining Labor Certification
The first phase in sponsoring a foreign employee for permanent residency is through Program Electronic Review Management (PERM) to acquire labor certification. Obtaining PERM approval is not easy because you and your foreign worker must meet the following criteria:
- The employment offer you are making must be for a credible position
- You must be hiring the worker permanently
- The job post you are offering must meet the minimum wage requirements
- The employment opportunity you are offering must not interfere with the surroundings and working settings of American citizens
- No employee in the U.S. is willing, skilled, and available for the position you want to fill
Determining Wage for the Foreign Worker
The labor department requires that you determine the wage you will be paying the immigrant worker for PERM approval. You should submit the information on wages electronically, but before doing this, you must survey and analyze the wages being offered for the same position by other Californian employers. The National Prevailing Wage and Center (NPWC) is mandated to establish salaries for all job positions held by various professionals. Therefore, once you have submitted your wage to NPWC, they will reply with info regarding the same job in your locality and the prevailing wages. Once you know the wage you should pay the immigrant worker, you can promise to pay a similar or higher amount.
You should note that when establishing the wage for immigrant employees, you must prioritize eligible California citizens.
Also, you must understand that you and not the employee start the PERM procedure. You do this because the entire process requires your permission and cooperation. And because you have little or no knowledge about the application process, you must enlist legal counsel to help you with the process. An immigration legal expert understands the certification process and will help you submit the general wage info to the labor department.
Labor Certification Procedure
Sponsoring a foreign employee for permanent residency begins with labor certification. To commence the procedure, you must obtain a labor certification from the labor department. The certification is a deed that allows you to enter a green card petition for the foreigner you are offering a job.
And before you initiate the process, you must ensure that no qualified Californian is available and ready to do the job. Further, you must have advertised the job, processed the applications, interviewed candidates, and undertake any other recruitment procedures provided under the law. When the recruitment for the open position is unsuccessful, you can apply to the labor department requesting them to petition for a green card for a foreign worker you are offering the open position to.
Steps Involved in a Labor Certification Petition
You will complete the PERM application online by creating an account and profile. Doing so makes it easier for the immigrant you are offering the job to:
- Update their info online
- Track the details submitted about the certification petition
- Pre-populate general info online
- Remove any unnecessary labor certification application
- Increase account users
- Share emails regarding the petition with others
After creating an account, the steps that follow in the petition are:
1. Ascertaining the Minimum Qualifications for the Job
You should set minimum requirements for the job you are offering. If you need more clarification on the qualifications, you can send a duplicate to the labor department for evaluation. After the analysis, the department will inform you whether the requirements are practical and if a Californian worker can fill the position.
2. Ascertaining Prevailing Wages
Before the application, you should ask for a prevailing wage determination by the California Workforce Agency. In your application, you should attach the income tracking digit, overall salary, source of income, skill set required, job title, determination, and expiry date.
3. Petition Application
Once you know the prevailing wage, you should petition the state Workforce Agency or state Employment Security Agency (SESA). During application, you should complete the form detailing the open position by including info like the employment profile, requirements for the position, training, experience, and education requirements the applicant must possess to fill the vacancy.
4. Review Procedure
The SESA will then validate your petition and assess your application to hire a foreign worker. The agency will suggest any changes that must be made to the application. Following the review, the agency will respond as to whether you meet the criteria and whether the salary range is competitive in the market.
5. Recruitment Campaign
The next step involves you trying to find an American worker to fill the open position through a recruitment campaign. The labor department clearly states the rules that should be followed during recruitment. Additionally, SESA will supervise the campaign and ensure it is done per labor regulations. You must post an ad for the open position in your workplace and announce the work in journals, California computer databases, and newspapers. The foreign worker you offer the job to and other interested candidates will apply for it and be interviewed if they meet the requirements.
6. Results Submission
Once the interviews are concluded, you should send a report of the recruitment drive to SESA. You must demonstrate in the information provided that you advertised the position per labor laws and attracted numerous applicants for the opening. If you reject some applicants, you must give reasons for declining their applications.
The Department of Labor (DOL) will evaluate your justifications for rejecting an applicant, so you must provide solid explanations. When it is discovered that a Californian meets the minimum requirements for the job and you deny them the position and offer it to a foreigner, the DOL will cancel the decision and consider the American citizen over the alien for the job. The goal of DOL is to reduce joblessness in California, which is why the interests of a citizen will come before those of a foreign worker.
7. Decision Making
When a thorough review of your recruitment campaign report shows that no Californian meets the minimum criteria to fill the position, the DOL will grant your labor certification petition. Nevertheless, the decision will not always be in your favor if the department learns that you were unfair and denied eligible American workers the position without any justification. The results you should anticipate from the DOL for your petition are as follows:
- Approval of the labor certification without supervised recruitment
- Supervised recruitment campaign
- A fresh recruitment campaign
When the DOL directs an audit on the recruitment process, it will delay the approval, and you could be forced to wait longer before hiring the foreign worker.
Records Retention
The permanent work certification application paperwork must be on file for five years. The most critical of all these documents is the prevailing wage copy.
Time Taken for the Labor Certification Process
While the recruitment drive takes about two months, the PERM procedure typically takes four to six months. Due to potential delays, it is essential to consult with a knowledgeable immigration lawyer before making plans or setting expectations.
Once you have a certified copy of the DOL's PERM approval, you can start your recruitment drive. After filing a labor certification petition and seeing the advertisement, you should wait for six months.
The labor certification and recruitment campaign are just preparations for sponsoring a foreign worker for a green card. The actual application involves completing Form I-140.
Also, before filing the labor certification petition, you must wait 30 days from your last advertisement, bringing the total duration to seven months. After the mandatory waiting period, you can complete the PERM claim online. You will obtain labor certification when the petition is approved without an audit. Once this is done, you will be ready to proceed to the next step, filing a petition with the United States Citizenship and Immigration Services (USCIS).
Filing the I-140 Petition
The next step in sponsoring a foreign worker for permanent residency, or a "green card," is completing Form I-140. You can only file this petition after the approval of your PERM petition.
Once you have filed the I-140 petition, the USCIS will want to know if the immigrant worker you are sponsoring is working for an American company. If yes, the USCIS will want to know if the worker is paid per the prevailing wage standards for the job. If the worker you sponsor is not paid the prevailing wage, the agency will want you to demonstrate that you are willing and capable of delivering the worker the prevailing wage once you have hired them. To prove your financial capacity, you must furnish the USCIS with your corporate tax returns or other financial documents demonstrating your ability to pay the sponsored worker the prevailing wage.
After you have prepared these documents, you can file the I-140 petition. Regular processing of the petition will take about a year to complete. However, if you pay $2,500 for premium processing, the USCIS will approve your application within fifteen days of filing.
Filing the I-485 or Immigrant Visa
If the worker is already legally residing in California, the status adjustment to legal permanent residency is the last step in the sponsorship process. Being legally in the state means the worker has a valid visa status or the priority date is not due on the Visa Bulletin. This section is often left for the worker.
Only after the employer has submitted a PERM application, or when it is being submitted, can an applicant change their status. When the applicant lives in California and files under EB-2 or EB-3 categories, it is possible to complete Forms I-140 and 1-185 concurrently. However, when the visas are unavailable, they must file an I-140 first. After the application is approved and the priority date on the Visa Bulletin is current, they can apply for an immigrant visa at an overseas U.S. consulate if they are abroad or file Form I-185 for status adjustment with the USCIS if they are legally living in California.
Your Obligations to the Worker being Sponsored for a Green Card
When you decide to sponsor a foreign worker for legal permanent residency, you, as the sponsoring American employer, take on several obligations. These obligations are:
Paying for the Cost of Recruitment
When planning to sponsor an employee for a green card, it is critical to talk to an immigration attorney to understand the cost of the recruitment. Generally, the amount you pay depends on your unique circumstances, the immigrant worker, and the open position. Nonetheless, it would help if you considered particular financial obligations when sponsoring a worker.
First and foremost, you must be prepared to cover all expenses related to the PERM application, including the cost of a recruitment campaign and the fee for an immigration lawyer. If you fail to pay for the costs associated with the labor certification, you risk heavy fines from the DOL. Therefore, before the sponsoring process starts, you should consult your immigration legal expert to analyze and prepare for these fees.
Footing Attorney’s Bills
The PERM process is highly complex. For this reason, you are encouraged to hire an attorney to guide you through the process and avoid mistakes that could result in a delay or denial of your application. The legal fees vary from one attorney to another, but you should expect to pay an average of $700 to $7,000 for legal services.
Paying Application Fees
As of 2023, you do not need to pay any fee to file a PERM petition with the DOL. You must pay a considerable amount to the USCIS when completing Form I-140. The application fee is about $700, although the USCIS is trying to change the fee structure.
You do not have to pay all the fees alone. Some expenses, particularly those connected to status adjustments, can be passed along to the employee you sponsor.
Immigration laws allow the immediate family of a foreign worker who has been granted permanent residence to apply for a green card. Even if the worker's immediate family members are also qualified for permanent residency, you are not required to pay for their application fees.
Paying the Sponsored Employee the Prevailing wages
The immigration regulations require that you, the employer, pay foreign workers the prevailing wage for their work. These wages vary based on location. Consequently, before moving forward with the sponsorship, you should confirm the going rate of pay in your region and make sure you can pay the sum. And even before your PERM application is approved, you must demonstrate to the DOL that you can afford to pay the prevailing wage.
Employment Duration for the Foreign Worker
Immigration statutes do not stipulate the duration for which you should employ the sponsored worker after they have obtained permanent residency. If the type of relationship between you and the employee is “at will,” you can dismiss or lay off the worker at will.
However, if the relationship is terminated immediately after the employee has been granted permanent residency, USCIS will be persuaded that the job offer was not for a permanent position. The entire process will be deemed fraudulent. Although the issue will not affect the worker’s permanent residency, it can come up if they seek citizenship.
Handling Immigrant Employees in a Nondiscriminatory Manner
The law discourages workplace discrimination based on an employee’s nationality or citizenship. Because of this, you should refrain from denying foreign employees promotions or subjecting them to an unfavorable working environment.
You risk hefty fines and severe penalties if you discriminate against your immigrant workers.
Find an Experienced Los Angeles Immigration Attorney Near me
A legal counsel's services are not required, but it is advised due to the complexity of the process when sponsoring a foreign worker to obtain a green card. At California Immigration Attorney, we can assist you in navigating the complex procedure and avoiding mistakes that could result in your application being denied. Call us today at 424-789-8809 to arrange a meeting.