Immigration Basics:
Overview of Procedures and
Obligations for Employers
Part 1: Nonimmigrant Visas
Fragomen, Del Rey, Bernsen & Loewy, LLP
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
Aaron Blumberg
ablumberg@fragomen.com
Associate
Enrique Gonzalez
egonzalez@fragomen.com
Managing Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
1 Alhambra Plaza, Suite 600, Coral Gables, FL
(305) 774-5800
2
Immigration
Overview
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
Three Groups of People in the US
1) Citizens
2) Immigrants
3) Nonimmigrants
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Nonimmigrants
• Coming to the U.S. temporarily
• Retain residence abroad
• Dual intent - only for H’s and L’s
• “Alphabet Soup” - A-V
• Important Visas to Know: H-1B, TN, E3, F-1, J-1, O-1
• Immigrants vs. nonimmigrants
5
Immigrants
• “Green card holders” = “permanent residents”
= “immigrants”
• Coming to U.S. permanently
• Numerically limited
– Visa bulletin
– Priority date
• Can become U.S. citizens after 3 - 5 years
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Understanding the
Documents
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Visa Stamp
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I-94 (D/S)
9
I-94 (Expiration Date)
10
I-797
Approval
Notice & I94 Card
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I-20 (F)
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DS-2019 (J)
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Form I-9
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H-1B Work Visa
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
H-1B Category: USCIS Provisions
• H-1B visas are for temporary (nonimmigrant)
workers engaged in a specialty occupation that
requires
– (1) theoretical and practical application of highly
specialized knowledge and
– (2) attainment of a bachelor's or higher degree, or
equivalent experience, in the specific specialty for entry
into the occupation.
• “Specialty Occupation” -- Entry level requirement =
minimum Bachelor Degree or equivalent
• Cap: 65,000 + 20,000 additional visas allocated to
holders of advanced degrees from U.S. universities
• Cap Subject vs. Cap Exempt
– All Universities are cap exempt
16
H-1B (continued)
• H-1B can be full-time or part-time
• H-1B workers are “tied” to their employer
– Cannot accept payment from any other source
• Can hold dual/concurrent H-1Bs with multiple
employers
• What are the government fees? ($325, $500,
$750/$1500)
– Universities exempt from Training Fee ($750/$1500)
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H-1B (continued)
• H-1B visas are valid for 3 years and can be extended
for an additional 3 year period for a total of 6 years
in H-1 status
– Previous stays in L-1 or H-1 status (but not L-2 or H-4
dependent status) count towards maximum period of
stay
– Time spent outside of the US does not count towards 6
year limit
• H-1B visas can be extended past the 6-year
maximum in certain situations:
– 1 year Extension: If PERM has been filed at least 365
days prior to the date the H‐1B expires
– 3 year Extension: If an I‐140 has been approved, and
the individual cannot adjust status because priority date
is not current (usually someone from China or India)
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Wage Requirements
• Actual Wage
– paid by the employer to US workers
– in the same position
– at the same work site
– with similar experience and qualifications
• Prevailing Wage
– Average salary paid to all similarly situated
employees (i.e. similar job duties, experience,
education, etc.) in each geographic region
• Required Wage – higher of the actual or prevailing
19
Prevailing Wages
• Two ways to get PWD: Through Dept of Labor
OR through FLC Data Center (website)
• DOL Wages: DOL will issue a wage by going
on FLC Data Center themselves and finding
the appropriate job code and wage level
• When we get the wage on our own, we run the
risk of creating liability for the University,
therefore all wages must be obtained through
DOL; this creates a Safe Harbor!
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Actual Wage Memo & Form
• Should be completed and submitted along
with NIV employer questionnaire
• We need to demonstrate that the University is
paying H-1B employees at least, if not more,
than all other similarly situated employees
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University Actual Wage Form
ase complete this form for all others in the Department/Division/Center with the same classification as the H-1B employee.
Name
Employee
ID #
Title
Date
Started
at University
Manny Delcarmen
658-92-673
Computer
Programmer
08/01/2007
Bruce Hurst
874-23-001
Computer
Programmer
John Valentin
876-21-932
Jose Offerman
Troy O’Leary
Date
Started
in New
Position
Contract
Length
9/12
Annual
Salary
Highest
Degree
Year
Degree
Earned
Institution
where Highest
Degree Earned
N/A
12
$43,000
BS
2007
Florida International
University
01/06/2002
1/09/2009
12
$88,000
Masters
1992
University of Miami
Computer
Programmer
08/20/2009
N/A
12
$52,000
BS
1998
Emory University
653-23-123
Computer
Programmer
08/23/2000
8/28/2001
12
$32,000
AA
1999
Miami Dade
College
542-22-122
Computer
Systems Analyst
01/19/2009
N/A
12
BA
2008
Florida International
University
$48,200
e salary of the prospective/current H-1B employee has been determined by comparing the education, experience, specialized knowledge and other relevant factors with those for
other persons in the same job classification within the Department/Division/Center.
partment/Division/Center Chair/Director
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Printed Name and Title
Date
MEMORANDUM
To:
Public Access File
From: Kenneth G. Furton, Dean of the College of Arts & Sciences
Re:
Actual Wage Memorandum for Manny Delcarmen
Date: August 19, 2010
As indicated by the attached Actual Wage Form, in addition to Manny
Delcarmen, there are three other Computer Programmers in the College of
Arts & Sciences. Two of those employees earn a higher salary as they both
have more years of experience in the field and one of them holds a Master’s
Degree. The reason that Manny Delcarmen’s salary is lower is because he
just recently obtained his Bachelor’s Degree and has only 1 year of work
experience.
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Procedural Requirements of the
LCA
29
•
The U.S. employer must file a Labor
Condition Application (LCA) with the
Department of Labor. The employer must
attest to certain things in the LCA, such as
paying the FN at or above the prevailing
wage for the position.
•
U.S. employer must post the LCA for ten
business days in two conspicuous locations
and include the LCA and other documentation
in a public access file.
General Requirements of LCA
• LCA required for every H-1B petition and all H1B1 & E-3 applications
• Purpose – to protect wages and working
conditions of U.S. workers
• Employer makes attestations on LCA
• 10 day posting requirement at work site (2
locations)
• LCA form filed electronically with DOL
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LCA Attestations
• All employers must attest:
– Working conditions of U.S. workers will
not be adversely affected
– There is no strike or lockout
– H-1B workers will be paid the higher of
the prevailing or actual wage
– Notice has been provided to all
employees
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Public Access File (PAF)
• To be maintained by employer
• For every LCA
• Retain for 1 year from expiration of LCA or
withdrawal of LCA
• Must be available for inspection by anyone
• Must be created within one working day after
the filing of the LCA
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Additional H-1B
Issues
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
H-1B Dependents
• H-4: Spouse and children (under
21)
• Status contingent on H-1B
• No employment; can study full-time
• H-4 children who turn 21 need to
change status
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Premium Processing
• USCIS Processing Times: 3-5 months
• USCIS Premium Processing Fee =
$1225
• Premium Processing = 15 calendar days
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When is Premium Processing NOT
Needed?
• Premium Processing is usually not needed for
a change of employer or extension of H-1B
status
– Unless there are immediate travel needs
• Change of Employer = Employee is currently
working for another employer in H-1B status
• Extension of Status: As long as the extension
petition is filed BEFORE the current H-1B
expires, the employee is authorized to work
pursuant to their receipt notice for up to 240
days
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When is Premium Processing
Sometimes Needed?
• Change of Status: Most common is changing
from F-1 or J-1 to H-1B; employee cannot
start working until petition is APPROVED
• Consular Notification: When the employee is
abroad
– Please factor in added delays such as scheduling a
visa appointment and getting the visa stamp
• Travel: When the foreign national wants an
immediate approval in order to be able to
travel internationally
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No “Benching” H-1B Workers
• Must start payroll when H-1B “enters into employment”,
i.e., when he/she first makes him/herself available for
work or comes under control of employer but no later
than
– 30 days after entering US or
– If in US, 60 days after start date on petition or
change of status by USCIS, whichever is later
• No exception where awaiting license
• No unpaid status due to lack of work
• Unpaid leave OK if:
– H-1B unable to work
– Worker’s voluntary request
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H-1B Portability
• Enables nonimmigrants currently in H-1B status to
begin new employment upon USCIS receipt of an H-1B
petition by new employer. Though there is no official
guidance, time from termination of earlier
employment to filing of new petition should be
minimal (usually less than 30 days).
• Eligibility Requirements
– Must have been lawfully admitted into the U.S
– No unauthorized employment subsequent to lawful admission
– Non-frivolous H-1B petition must be filed for new employment before
expiration of current status
• Don’t forget – porting from cap-exempt nonprofit to a
for-profit employer means that the foreign national is
submit to the H-1B cap.
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Terminated H-1B Employees
• When are they out of status? Is there a “grace
period?”
– Technically out of status upon last day of actual productive
employment
– In practice, USCIS provides “reasonable time” to file
change of status or new employer petition after
termination of employment
– Is changing to B-2 status an option?
– Employers must offer to pay principal’s transportation
costs home (preferably in writing at the time of
termination)
• Need to send a withdrawal letter to USCIS
immediately!
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Offering Jobs to Potential H-1Bs
• Make it clear that the job offer is contingent
upon obtaining valid work authorization
• Just because they work for you on OPT does
not mean they are necessarily eligible for H1B
• H-1B prevailing wages have increased
significantly this year
• H-1B denials have increased as well
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Travel Considerations
• In order to enter the US in H-1B status, the foreign
national must present a valid, unexpired H-1B visa
stamp
• In order to obtain the visa stamp, foreign nationals
must complete an online application form (DS160), make an appointment at their local
Embassy/Consulate and present their original I797 approval notice and a copy of the application
package we filed with USCIS
• Exception: Certain foreign nationals may be able
to travel to Canada or Mexico for under 30 days
without having an unexpired H-1B visa stamp
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Other H-1B Issues
• H-1B’s can take classes which are “incidental”
to his/her employment (part-time studies)
• Amendments: Is it a “material change”?
– Change in job duties, responsibilities and title are
good indicators that an amendment is needed
• 212(e): Certain J-1 exchange visitors are
subject to a 2 year home-residence
requirement; such individuals cannot change
status to H-1B until they serve the 2 years at
home or obtain a waiver
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Other Temporary
Work Visas
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
E-3 Visa for Australian Nationals
• Visa category for citizens of Australia to take up
professional positions in the U.S. – 10,500 per year
available
• Job offered must be for a “specialty occupation” as
defined for H-1B visa category
• Requires certified LCA
• Visas can be applied for at consulates without prior
USCIS approval
• Filings can be submitted to USCIS, but premium
processing is not available
• 2-year validity; renewable indefinitely
• Dependent spouses may apply for employment
authorization
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TN Category for Canadian and Mexican
Professionals
• Must be nationals of either Canada or Mexico
• Coming to U.S. to work in profession listed on NAFTA
schedule
• Generally require a Bachelors degree in field
• Canadians apply at border (non-national dependents
must obtain visa at U.S. Consulate)
• Mexicans apply at Consulate
• Three year stay, renewable indefinitely
• Extensions and changes of status may be filed at USCIS
Service Center
• Employer Specific; can hold dual TN’s
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O-1 Individuals with Extraordinary
Ability or Achievement
• The O-1 nonimmigrant visa is for the
individual who possesses extraordinary ability in
the sciences, arts, education, business, or athletics
• To qualify for an O-1 visa, the beneficiary must
demonstrate extraordinary ability by sustained
national or international acclaim and must be
coming temporarily to the United States to
continue work in the area of extraordinary ability.
• Employer specific; but can hold dual O-1s
• Anyone still subject to INA 212e (J-1 2 year home
residence requirement) can obtain an O-1 visa
• 3 years at a time, renewable indefinitely
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Evidentiary Criteria for O-1
•
Evidence that the beneficiary has received a major,
internationally-recognized award, such as a Nobel Prize, or
evidence of at least (3) three of the following:
– Receipt of nationally or internationally recognized prizes or awards for
excellence in the field of endeavor
– Membership in associations in the field for which classification is
sought which require outstanding achievements, as judged by
recognized national or international experts in the field
– Published material in professional or major trade publications,
newspapers or other major media about the beneficiary and the
beneficiary’s work in the field for which classification is sought
– Original scientific, scholarly, or business-related contributions of major
significance in the field
– Authorship of scholarly articles in professional journals or other major
media in the field for which classification is sought
– A high salary or other remuneration for services as evidenced by
contracts or other reliable evidence
– Participation on a panel, or individually, as a judge of the work of
others in the same or in a field of specialization allied to that field for
which classification is sought
– Employment in a critical or essential capacity for organizations and
establishments that have a distinguished reputation
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F-1 Student Workers
• Six employment programs for F-1’s:
– On campus
– Severe Economic Hardship
– Special Student Relief
– Internship with international organization
– Curricular Practical Training
– Optional Practical Training
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F-1 Curricular Practical Training
(CPT)
• Integral part of established curriculum
– Need letter from school
– School endorsed I-20 (issued via SEVIS System)
– Can be internship, practicum, coop, work/study, or similar
program
• Attended ICE approved school for full academic year in
any nonimmigrant status; certain grad students may
begin immediately
• Available part-time or full-time
• One year or more of full-time CPT makes you ineligible
for OPT at that educational level
– But 24 months of part-time CPT is OK!
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F-1 Optional Practical Training (OPT)
• “Optional Practical Training:” pre- or post-graduation
– Total = 12 months; part-time during school year, full-time
during vacations and after graduation
– Need employment authorization document (EAD);
– Not tied to particular employer
– Employment related to degree program
• One year of full-time OPT for each academic level
(Associate’s, Bachelor’s, Master’s, Professional, PhD).
OPT can’t be “saved” for future degree programs; very
hard to cancel after card received
• Can have up to 90 days of unemployment
• Can use OPT for Assistant Professor positions
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STEM OPT Extension
• Student’s who majored in certain STEM (Science,
Technology, Engineering, Math) fields may be eligible
for a 17 month extension of work authorization
• BUT, must have a job offer from a company that is
enrolled in E-Verify
• Allowed to have up to 120 days of unemployment
• Must file I-765 with USCIS BEFORE current OPT expires
(and preferably 120 days before expiration)
• Students CAN work with an expired OPT card when a
timely filed STEM extension application is pending with
USCIS
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J-1 Exchange Visitors
• Categories include trainees, interns,
research scholars, specialists, students, au
pairs, etc.
• Some J’s must return to home country for 2
years after completion of program or seek
waiver
– skills list
– government funding
– graduate medical education
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J-1 Students (Academic Training)
• Similar to F-1 OPT (work must be related to
major)
• Can be used while in school or post-graduation
• 18 months max for undergrads and pre-docs
(unless course of study is less than 18 months
long)
• 36 months max for post-docs (unless course
of study is less than 36 months)
• Need letter from RO/ARO and valid DS2019/I-94 for I-9 purposes
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J-1 Scholars and Professors
• 5 year maximum (no recapture); employment tied to
sponsor; no wage requirements
• Cannot be in a tenured or tenure-track position
• 12 Month Bar: Can’t get this particular J-1 if EV was in
J-1/J-2 status within the past 12 months (several
exceptions apply)
• 24 Month Bar: Can’t get this particular J-1 if EV was in
J-1/J-2 status (as a Scholar or Professor) within the
past 24 months
• 2 Year Home Residence Requirement: Additional
restriction
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B-1 Visitor for Business
• Cannot receive pay from a US source
• Admitted for up to 6 months (90 days for Visa Waiver)
• Must show that temporary activity in US will not be
considered productive employment for a US company
• Common Uses: Independent research, conferences,
training, lecture, meeting
• 9, 6, 5 Rule: If honorarium will be received, activities
can last no longer than nine days at any single
institution or organization; honorarium is for services
conducted for the benefit of the institution or entity;
and visa applicant will not have accepted such payment
or expenses from more than five institutions or
organizations over the last six months.
• B-1 vs. J-1
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Initiating A Case
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
The IHP (Immigration Home Page)
•
The Dept must obtain authorization from HR
to proceed with the sponsorship
•
The Dept and/or HR MUST initiate a case
online on the IHP (https://nsu.fdbl.com/) by
completing the “Nonimmigrant Visa Employer
Questionnaire”
58
•
Once we get the employer questionnaire, we
contact the employee to complete the employee
questionnaire
•
We cannot begin working on a case until we have
the completed Employer and Employee
questionnaires.
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When Should I Initiate a Case?
• THE EARLIER THE BETTER!
• Recommended: Initiate Cases 6-8
months in advance
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Permanent Residence
Overview
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
How to Get a Green Card
• Family
• Work
• Diversity Lottery
• Asylum
• Special Legislation
62
Diversity Lottery
• 50,000 green cards given out each year (about 14 million
applicants)
• Odds of winning the powerball jackpot?? 1 in 195,249,054
• Who is NOT eligible? BRAZIL, CANADA, CHINA (mainlandborn), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL
SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO,
PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA,
UNITED KINGDOM (except Northern Ireland) and its
dependent territories, and VIETNAM
• Persons born in Hong Kong SAR, Macau SAR, and Taiwan are
eligible.
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Family Based Permanent Residence
• Immediate relatives (spouses, minor children
& parents of U.S. citizens)
• Other close family members of citizens or
permanent residents, including:
1. Unmarried sons & daughters of citizens (over age
21)
2. Spouses & children of LPRs (2A) & unmarried
sons/daughters of LPRs (2B)
3. Married sons & daughters of citizens
4. Brothers & sisters of citizens
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May 2011 Family Bulletin
65
Employment-Based Categories
• EB-1: Priority workers
• EB-2: Advance-degree professionals &
aliens of exceptional ability*
• EB-3: Professional, skilled & unskilled
workers*
(* labor certification required)
66
May 2011 Employment Bulletin
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Priority Workers &
National Interest
Waivers
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
EB-1 Outstanding
Researchers/Professors
• You must demonstrate international
recognition for your outstanding achievements
in a particular academic field.
• You must have at least 3 years experience in
teaching or research in that academic area.
• You must be entering the United States in
order to pursue tenure or tenure track
teaching or comparable research position at a
university or other institution of higher
education.
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EB-1 Outstanding
Researchers/Professors
• Evidence of receipt of major prizes or awards for outstanding
achievement
• Evidence of membership in associations that require their
members to demonstrate outstanding achievement
• Evidence of published material in professional publications
written by others about the alien's work in the academic field
• Evidence of participation, either on a panel or individually, as
a judge of the work of others in the same or allied academic
field
• Evidence of original scientific or scholarly research
contributions in the field
• Evidence of authorship of scholarly books or articles (in
scholarly journals with international circulation) in the field
70
National Interest Waivers
• Aliens seeking a national interest waiver are requesting
that the Labor Certification be waived because it is in
the interest of the United States.
• Though the jobs that qualify for a national interest
waiver are not defined by statute, national interest
waivers are usually granted to those who have
exceptional ability and whose employment in the United
States would greatly benefit the national interest.
• Those seeking a national interest waiver may selfpetition (they do not need an employer to sponsor
them) and may file their labor certification directly with
USCIS along with their Form I-140, Petition for Alien
Worker.
• Good category for Post-Docs
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PERM Labor
Certifications
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
PERM - Labor Certification Process
• PERM = Program Electronic Review
Management
• PERM does not stand for permanent residence!
• Electronic application process
• Step 1 of the Green Card process (3 steps)
• Must obtain prevailing wage determination
from National Prevailing Wage and Helpdesk
Center (NPWHC) before filing
73
What Is Labor Certification?
• Test of job market to make sure minimally
qualified U.S. workers get available jobs before
any foreign worker.
• Affected by the economy
• Search for able, willing, qualified and available
U.S. Workers.
• Can’t make a company hire U.S. worker, but
can’t submit case for foreign worker if a
minimally qualified U.S. worker found.
• All fees associated with labor certification must
be paid by employer (attorney fees, advertising
costs)
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When Is Labor Certification
Needed?
• First Stage of Permanent Residence Process for
most employer-sponsored applications.
• Is needed by most EB-2 and all EB-3
• Who doesn’t need it:
– EB-1 cases:
• Multi-national Executive or Manager
• Outstanding Researcher
• Individual of Extraordinary Ability
– EB-2 IF National Interest is served by what
they’re doing
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2 Types of Labor Certifications
• Regular PERM: For all
professional positions other
than teachers
• Special Handling PERM: Only
for college/university teaching
positions
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Special Handling
PERM Processing
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
Basic Requirements
• The labor certification application must be filed within
18 months from the date of the job offer letter (not
the date of hire and not the first day of employment).
If the case is not filed within this timeframe, a
completely new, full-scale candidate search must be
conducted before another application may be filed;
• The position must have been advertised in a national
print journal;
• The position must primarily involve classroom
teaching;
• The salary must be at or above the prevailing wage;
• Notice of Job Availability (NOJA): DOL requires a
sponsoring employer to post notification regarding
the filing of a labor certification for ten consecutive
business days
• Recruitment Statement
78
Less-Stringent Standard
• Must show that applicant is “more qualified”
than any other US applicant
• Can use subjective factors to show that the FN
is more qualified
• Much easier than showing that there are no
minimally qualified US workers available
• Must document this through the Recruitment
Statement
79
What Happens When 18 Month
Deadline is Missed?
• A re-posting of the position will need be done to test the
labor market
• DOL regulations require that employers test the labor
market so that U.S. citizens and permanent residents
are not discriminated from the process; the main goal
here is to see if there are qualified citizens and
permanent residents, and to certify to the Dept. of
Labor (DOL) of the labor conditions
• While it appears counter-intuitive to advertise for a
position that is not vacant, keep in mind that the
primary purpose is to test the labor market
• We are allowed to file this case with DOL if the
University determines that the foreign national is more
qualified than any US workers who applied for the job.
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Benefits
• Fewer advertising costs
• Quicker processing times
• Lower audit rates
• Easier standard, especially with
our current high unemployment
rate
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Regular PERM
Processing
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
Labor Certification Basics
• The University must be able to certify to the
DOL that there are no qualified U.S. workers
able, willing, qualified and available to accept
the job and that the employment of the alien
will not adversely affect the wages and
working conditions of similarly employed U.S.
workers
• In order to make this certification, the
University must run a series of advertisements
and conduct a recruitment
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Qualifying Criteria
• The employer must hire the foreign worker as a full-time
employee.
• There must be a bona fide job opening available to U.S.
workers.
• Job requirements must adhere to what is customarily
required for the occupation in the U.S. and may not be
tailored to the foreign worker's qualifications. In addition,
the employer shall document that the job opportunity has
been and is being described without unduly restrictive job
requirements, unless adequately documented as arising
from business necessity.
• The employer must pay at least the prevailing wage for the
occupation in the area of intended employment.
• Recruitment must take place 30-180 days before PERM
application filed
84
Requirements
•
•
•
•
Prevailing Wage Determination
Placement of job order with SWA
Placement of two Sunday newspaper ads
3 additional ads (Employer’s website; Job fairs; Job
search websites; Private employment agencies; On-campus
recruitment; Trade or professional organizations; Employee
referral program (if incentives are offered); Campus
placement office postings; Local and ethnic newspapers,
where appropriate; Radio and television ads)
• Recruitment Report
• Notice of Job Availibility (NOJA)
85
Elements of the Advertisement
• Must contain the employer’s name
• Must direct applicants to report to or apply
to the employer
• Must describe the job opportunity
• Must indicate the geographic location of
the job opportunity
• The wage is not required, but if wage is
included in the ad, must equal or exceed
prevailing wage (and cannot be less
favorable than the wage offered the
foreign national)
86
Contacting Applicants
• Good Faith Effort
• Employer must timely contact ALL applicants
as soon as possible (within reasonable
timeframe, e.g. 7-14 days of receipt)
• Employer must document applicant contacts
or attempts to contact:
– dates
– name and title of person making/ attempting contact
– method of contact - certified letter recommended
87
Interviewing Applicants
• Employer’s normal company process
– screening (e.g., telephone) interview conducted by
employer is acceptable
• Employer must analyze qualifications in the
context of stated minimum requirements
• Employer must provide objective &
quantifiable reasons for rejections
• Authorization to work in the U.S.
• Potentially qualified applicants
88
Recruitment Record/Report
• Recruitment results not submitted with labor
certification application
• Employers must maintain documentation of
recruitment efforts and results
– Records must be retained for five years from filing of labor
certification application
– Certifying Officer may request records during an audit
• Employer must prepare detailed recruitment report
that fully and accurately describes recruitment efforts
– Must detail number of workers applied and sorted by
reason of rejection (doesn’t need to contain names or
resumes)
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Audits & PostPERM Issues
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
Audit File
• Contents
– Recruitment efforts
– Recruitment report
– Prevailing wage determination
– Notices/Postings/Advertisements
– Business necessity arguments
• Records must be retained for 5 years
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Audits
• How will cases be selected for an audit?
– Randomly
– Based upon audit criteria
•
•
•
•
•
•
•
•
Job duties not normal for occupation/exceed SVP
Qualifying experience gained with employer in comparable position
Layoffs
Foreign language requirements
Alternative requirements
Combination of occupations
Foreign national influence over position
Employer paid for education and/or training
• Audit process
– CO sends audit letter w/request for documentation
– Employer has 30 days to submit response
– CO may certify, deny, request additional documentation or order
supervised recruitment
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Impact of Termination or Changes in
Conditions of Employment on Permanent
Residence Process
• Immigrant Visa (I-140) Petitions
– Maintenance of priority date
• Adjustment of Status (I-485) Applications
– Adjustment of Status Portability
 If I-140 approved or approvable and I-485 pending more than 180
days
 Must be filling same or similar occupation
 Change in job location or difference in wage offered not basis for
denial (substantial wage difference could impact “same or similar
job capacity” analysis)
 Notification to USCIS of change of employer
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What Happens
After PERM
Approval?
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP
I-140 Petition
• Step 2 of the green card process
– Step 1 of the green card process for EB-1 and NIW
• After PERM approval, everyone is eligible to
file I-140
• Must be filed within 180 days of PERM
approval
• Must document ability to pay
• Must document requirements listed on PERM
application (education, experience, etc)
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May 2011 Employment Bulletin
96
Adjustment of Status (I-485)
• Third and final step of Green Card process
• Can file concurrently with I-140 if priority date is
current
• Filing of I-485 gives applicant status to remain in
the US
• 90 days after filing, applicant receives work permit
(EAD) and travel document (advance parole) if they
filed I-765 and I-131
• Biometrics occur 1-3 months after filing
• Green card issued approximately 6 months after
filing
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Thank You!
If you have additional questions,
please send me an email:
ablumberg@fragomen.com
This presentation is not intended to be construed as legal advice.
© 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP