An employer may hire a foreign worker to work permanently in the United States by obtaining a permanent labor certification. In most instances, before the U.S. employer can submit an immigration petition (I-140) to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the Department of Labor (DOL). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The PERM process must include a lengthy recruitment effort for U.S. workers by the petitioner as follows:
- Two Sunday newspaper advertisements
- A job order with the State Workforce Agency
- At least three of the following recruitment activities:
- Internet job search posting
- An ad on the employer’s website
- An internal incentive program
- Participation in a job fair
- Ad in a trade journal
- On-campus recruiting or use of a college placement office
- Local or ethnic newspapers (in certain instances)
- Television or radio advertisement
- Use of a job placement agency
Non Professional Position
- Two Sunday newspaper advertisements
- A job order with the state Workforce Agency
In addition to the above advertising requirements, there other procedures required by the PERM regulations, namely, that the position be internally posted at the company and the procurement of a Prevailing Wage Determination for the position from the State Workforce Agency. The pre-submission period of a PERM application, including all the recruitment activities generally takes approximately three months, depending on how long the Prevailing Wage Determination is taking. The PERM system has its advantages and disadvantages. If you have questions on your particular case, or wish to consider a PERM application, please contact our office.
EB-5 Green Cards
Individuals can obtain Green Cards through an investment under the EB-5 program, which was created to promote investments in businesses and to create and preserve jobs in the U.S. This allows people to become a lawful permanent resident by establishing a new commercial enterprise that provides full-time employment to at least ten U.S. citizens, legal permanent residents, or other immigrants. Each year, 10,000 EB-5 visas are available to qualified individuals, and of these, 5,000 are set aside for those who apply under the Immigrant Investor Pilot Program involving a Regional Center. A Regional Center is an economic entity, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. EB-5 investors may obtain permanent resident status either alone or coming with their spouse and unmarried children. Qualified individuals must have invested — or are actively in the process of investing — the required amount of capital into a new commercial enterprise that they have established. They must also demonstrate that this investment will benefit the U.S. economy and create the necessary number of full-time jobs for qualified persons within the U.S.
In general, you may be eligible for EB-5 immigrant visa if you do the following:
1. If you establish a new commercial enterprise that was:
- Established after Nov. 29, 1990, or
- Established on or before Nov. 29, 1990, that is:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
- Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs.
2. If you have invested, or are actively in the process of investing, in a new commercial enterprise:
- At least $500,000 where the investment is being made in a rural area or an area that has experienced unemployment of at least 150 per cent of the national average rate; or
- At least $1,000,000
3. If your engagement in a new commercial enterprise will benefit the U.S. economy and:
- Create full-time employment for not fewer than 10 qualified individuals (U.S. citizen, permanent resident or other immigrant authorized to work in the U.S.); or
- Maintain the number of existing employees at no less than the pre-investment level for a period of at least 2 years, where the capital investment is being made in a “troubled business,” which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.