Who is in the Driver's Seat for the Employment-Based Green Card Process? The U.S. Employer
The employment-based green card process is generally confusing to most employers interested in the process. This article is written to provide a fundamental understanding of the basics of beginning the process.
What should NOT be the motivation to engage in the employment-based green card process?
We often get calls from employers saying “we want to support our worker” or “we would like to sponsor this person”. Support and sponsorship should not be the goals of the employment-based green card process.
What should be the motivation to engage in the employment-based green card process?
It should always be driven by a business need or goal. The resources invested: money, time, and energy are all expended by the company, not the international personnel. If the viewpoint in proceeding with the employment-based green card is that it is a favor to the worker, it will likely fail.
The basics of the PERM employment-based green card process requires the U.S. employer to prove there are no minimally qualified, available America workers for the position offered. The employer is always in the driver’s seat during this process. Foreign nationals or entities cannot participate in any of the stages leading to the employment-based green card. Only U.S. employers have that right.
What is required of the U.S. Employer for participating in the employment-based green card process?
The U.S. employer:
Makes the decision to offer a future permanent position to the foreign worker, and makes all process-related decisions;
Retains a business immigration attorney to advise the employer;
Provides the attorney with information on the Green Card Checklist to enable to attorney assess whether and how the green card process is proceeding;
Pays filing and legal fees;
Works with the attorney to identify the true minimum requirements of the position offered to the foreign national;
If required, arranges for an academic or experience equivalency evaluations;
If applicable, reviews, and when correct, approves the PERM Prevailing Wage application for filing with DOL, and/or purchases or conducts a wage survey;
Reviews, and when correct, approves the Prevailing Wage Application for filing with DOL;
Pays for and places all recruitment activities with outside advertisers (newspapers, job boards, etc.);
Prepares and retains (with advice of counsel) the Recruitment Report;
Reviews, and when correct, approves the PERM Labor Certification Application;
Works with attorney on potential DOL PERM Audit;
Reviews, and when correct, approves I-140 Petition to be filed with USCIS
If applicable, provides evidence and reviews Reply to Request for Evidence or Notice of Intent to Deny for I-140 filing with USCIS;
Keeps records, maintains compliance with promises to USCIS.
This list is not exhaustive of the investment by the U.S. employer, but adequately captures what is generally expected for this process. Regardless of the amount of work involved, U.S. employers continue going through this process because they need qualified talent for the open positions at their companies. We work with employers ranging from small shops to massive entities and all jump in to the employment-based green card process with both feet because they need the worker AND they know they have expert counsel guiding them.
If you want training on the employment-based green card process, you can sign up here: https://www.usimmigrationcompliance.com/training-greencard
Business Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.