FAQ:  Green Card for Other Professionals

Green Card for Other Professionals

The standard procedure for obtaining a green card for professionals is for employers to test the labor market first through an application for labor certification under the PERM (the Permanent Electronic Review Management) system managed the U.S. Department of Labor (DOL).  A stream-lined procedure is available for “Outstanding” Researchers and Professors and persons of “extraordinary” or “exceptional” ability who are not required to apply for labor certification.

The PERM-based labor certification process is intended to protect American labor, and demonstrate to the U.S. DOL that there are no qualified U.S. workers available.  Many recruitment steps must be taken, including advertising for the position in newspapers, posting the position on the website of the state workforce agency where the job is located for at least 30 days, and three additional recruitment steps, including advertising in a local paper, posting the position on the employer’s website or a private job search website (e.g., monster.com or careerbuilder.com), employee referral program, job fair, and on campus recruitment.  Once all recruitment steps have been taken, a 30 day waiting period begins to allow for candidates to respond to the recruitment.  Upon the end of the waiting period, the application for labor certification is prepared and submitted online directly through the U.S. DOL website under the PERM system. 

The key to a labor certification is to demonstrate that the experience and education that the employer requires for the job are essential and that its requirements cannot be met on the American labor market.  The application will fail if a U.S. applicant for the position meets the employer’s minimum required qualifications.  The U.S. applicant need not be as qualified as the foreign national.

The minimum qualifications for the job must be described in terms acceptable to the DOL, and the company must affirm that it does not, for the same job or a comparable one, hire anyone with qualifications below those stated.  If the DOL finds the requirements to be “unduly restrictive” (i.e., intended to discourage U.S. applicants or improperly tailored to the foreign national’s qualifications), the PERM-based labor certification application will be subject to an audit by the U.S. DOL, which will request that the sponsoring employer demonstrate the such job requirements represent a “business necessity.” The DOL may ask the employer to cite the qualifications of others it has hired for this and similar positions in order to ascertain whether these are, in fact, its minimum requirements.  The DOL will approve the application if the employer can establish that such minimum requirements are normal for the position, or are necessary for the business under the circumstances.

The PERM-based labor certification process can take between 6 and 18 months, depending on whether the labor certification application is subject to an audit by the DOL.  If the PERM-based labor certification application is certified by the DOL, the next step would involve the employer’s submission to the Citizenship and Immigration Service of a petition, which is typically decided within 6 to 18 months, although processing times may vary.  In addition, an application to adjust the applicant’s immigration status to permanent resident (green card) status could also be submitted concurrently with the employer’s petition if the applicant is filing a green card application in a visa category and was born in a country for which there are visa numbers available.  If there are no visa numbers available at the time of the filing of the employer’s petition, the employer’s petition will be filed alone, and the application to adjust the applicant’s status will be filed once a visa number becomes available for the applicant.  Accordingly, the entire process could take several years, depending on whether there are green card numbers available corresponding to the applicant’s visa category and country of birth.  During this time, it would, of course, be incumbent upon the foreign national to maintain proper nonimmigrant (e.g., H-1B) status if he or she is working in the U.S. during the process.  See H-1B and Other Options for Professionals.