EB-5 Investment Visas

The labor certification process, called “PERM”, is a means of qualification for permanent residence in the United States based upon an employer’s need for an alien’s services in a particular job. The employer must demonstrate qualified U.S. workers are unavailable to fill the position and the employment of the alien will not adversely affect the wages and working conditions of U.S. workers in similar positions.

SUMMARY

The following is a summary of the steps involved in the PERM procedure:

The employer formulates an "offer of employment", a description of the job duties, minimum requirements to fill these duties and the salary offered.

A request for a prevailing wage determination is submitted to the State Workforce Agency (SWA) in the state where the alien will work. The SWA measures the wage offered against information on prevailing wages for the position offered and judges whether the minimum requirements for the position set by the employer fit the description of the position.

The employer must engage in a recruitment campaign to test the job market for available and qualified U.S. workers. The requirements for the recruitment vary depending upon whether the job is considered professional or nonprofessional.

For Non Professional Positions:

(i) Two advertisements must be placed in a newspaper of general circulation on separate Sundays. A suburban paper without a Sunday edition can be used if the other advertisement is in the Sunday edition of the metropolitan paper.
(ii) A Job Order must be placed with the State Workforce Agency.
(iii) Internal Posting.

For Professional Positions:

(i) Two advertisements must be placed in a newspaper of general circulation on separate Sundays. A professional journal may be used for one advertisement if likely to attract candidates.
(ii) A Job Order must be placed with the State Workforce Agency
(iii) Internal Posting
(iv) Recruitment from three other different sources including: job fairs, employer’s web site, job search website other than the employer’s, on-campus recruiting, trade or private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, radio and television advertising

After 30 days but not more than 180 days, the employer files form ETA 9089 with the U.S. Department of Labor (DOL). This form documents the position, the alien’s credentials, the recruitment undertaken, the response received, and states that no qualified applicants applied.

If the DOL approves the application, the application is certified and returned. At that point the employer signs the form ETA 9089 and an Immigrant Petition based upon the labor certification can be filed with the U. S. Citizenship and Immigration Services (USCIS). If the priority date is current, the employee and any dependents can file for adjustment of status to permanent resident at the same time the Immigrant Petition is filed.

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