Explaining Job Sponsorship to Your Employer
If you were to ask immigrants how they can become a Lawful Permanent Resident, commonly known as obtaining a “green-card,” chances are they will say that this can be done through employer sponsorship. Over the last year, this process has undergone some changes, the most radical of which is the requirement that an employer or sponsor file an application with the Department of Labor. An “Employer” is defined as a person, association, firm, or company with offices in the United States that has been issued a Federal Employer Identification Number. The Department of Labor’s approval of the application is called “certification,” which means that there are no U.S. workers qualified and available to do the job offered to the immigrant. A “U.S. worker” is defined as a U.S. citizen or national, a Lawful Permanent Resident, a person who entered as a refugee, or a person granted asylum.
The request for certification of a job sponsorship has been around for decades. However, as of March 28, 2005, the Department of Labor began to process these applications in a somewhat different manner. This new method is known as the Program Electronic Review Management (PERM) system. While it is always to your advantage to seek the advice of an experienced attorney, here are a few general guidelines to be aware of.
General Procedure
Under the old system, applications by employers or sponsors were mailed to the local office of the Department of Labor, in the state where the employer’s place of business was located. Under the PERM system, however, all applications are sent to one of two national processing centers, located in Atlanta and Chicago.
In addition, applications under PERM can now be filed either by mail or electronically, through an Internet-based account created by the employer. The Department of Labor requires the initial filing of an application. If, after reviewing the application, the Department decides it needs more information, it can request additional document.
However, before an employer or sponsor can file an application under PERM, they must first follow several recruitment steps. The Department of Labor demands that the employer or sponsor have proof that the recruitment procedures were performed completely and correctly before the application was sent or filed. If the employer or sponsor fails to follow the proper steps, or fails to respond completely and in a timely manner to requests from the Department of Labor, the case will be denied. If the Department of Labor suspected fraud, then the employer can face additional, severe consequences, such as being prohibited from filing another application for several years.
The Department of Labor estimates that from March 28, 2005 to March of this year it received 80,272 applications under PERM. Of these, it approved approximately 36,687 of those applications and denied approximately 23,205. Based on these numbers, it appears that the new PERM system has reduced the processing time of applications filed with the Department of Labor.
Recruitment steps
In simple terms, an employer or sponsor must begin the application process by following the instructions for recruitment for the position sought by the immigrant. First, the employer or sponsor must place advertisements in the help wanted section of a local newspaper of general circulation in the city or town where the immigrant will be working. The exact same advertisement must be placed for two (2) consecutive Sundays, excluding holidays. For example, an employer cannot place an ad during Easter Sunday to fulfill this requirement.
The advertisement must include the name of the employer or sponsor, a detailed description of the job, the geographic area of employment, and must direct applicants to send their resumes to the employer or sponsor’s address, or to a designated central or post office box.
Second, in addition to the advertisements, the employer or sponsor must contact the State Workforce Agency (SWA) and place a job order for the position. The job order must include the same information as the advertisements, and it must run for at least thirty (30) days.
Third, for jobs considered of a professional nature, meaning those that require the person to have an advanced degree of education (bachelor’s or higher), an employer or sponsor may place one ad in the Sunday newspaper and another ad in a professional journal. In addition to placing the Sunday advertisement, the professional journal advertisement, and the job order, the employer or sponsor must perform three (3) additional recruitment steps.
The employer must advertise the position using any three (3) of the following methods or means: (1) job fair, (2) employer or sponsor’s own website, (3) another job-search website, (4) recruitment at colleges and universities, (5) campus placement offices, (6) trade or professional organizations, (7) private employment firms or agencies, (8) employee-referral program giving incentives, (9) local and ethnic newspapers, or (10) radio or television. In order for the employer or sponsor to prove that the three additional recruitment steps were taken, it must keep records of all of these documents, even after the application has been filed with the Department of Labor.
Fourth, the employer or sponsor must post a Notice of Job Opportunity in its place of employment, to notify workers of the job availability. The posting must be placed at a location available to all employees, such as a bulletin board.
After placing the different ads, job orders, and notices, the employer or sponsor should wait at least thirty (30) days for any responses. It is very important that all documents be kept as proof that the employer or sponsor complied with all of the recruitment requirements. Documents to be collected and retained include newspaper sections where the advertisements appeared, printouts from the advertisements placed on websites, brochures, notices of job fairs, on-campus recruiting, etc.
Pre-filing steps
If no responses are received after all of the required recruitment steps are performed, and after waiting at least thirty (30) days (often referred to as the “quite period”), the employer or sponsor may prepare and send the application to the Department of Labor.
However, if there are responses to any of the advertisements, the applicants’ resumes must be reviewed, and if any are qualified for the advertised position, the employer must conduct an interview. Any rejection of applicants must be for a lawful, job-related reason, and not simply because the applicants are not the immigrant for whom the application is being prepared. The employer or sponsor will be expected to prepare a recruitment report, which must include copies of all the resumes received, and an explanation as to why particular applicants were rejected.
Next, the ten-page application must be completed and sent to the Department of Labor. While the application itself seems to be very easy to complete, it is important to complete it carefully. The Department of Labor has denied cases for very small omissions or errors. Thus, it is recommended that more than one person review the application before sending it to the Department of Labor.
Finally, the employer or sponsor should have a complete file that includes all of the documents gathered through this process, as well as a copy of the application.
After filing the application
The Department of Labor can do one of three things with an application: approve it, deny it, or call for an audit.
If the application is approved, the employer must prepare an Immigrant Petition to be filed with the offices of U.S. Citizenship and Immigration Services (CIS). In some instances, the immigrant for whom the PERM application and Immigrant Petition were filed may also file an adjustment of status application (along with the Immigrant Petition).
If the application is denied, in some instances the employer or sponsor may be able to file a new application, especially if the reason for the denial can be easily corrected and the advertising done for the position is not over 180 days old.
If the Department of Labor calls for an audit, then the employer or sponsor will receive a list of documents that it must submit, such as evidence of recruitment and the recruitment report. The Department of Labor could also request other documents, for example, verification that the company is in existence, evidence that the employer or sponsor has the ability to pay the wage required, or proof that the immigrant has the necessary experience, in the form of a letter of reference. In any event, the employer or sponsor will have thirty (30) days to submit a complete response to the audit. Failure to respond on time or completely will result in denial of the case.
It should be clear that undertaking this process is not to be done lightly. Once all of the above-information is absorbed, perhaps it would be wisest to retain experience personnel to assist in the preparation of an application under the PERM system.
Final note on PERM and the old process
As mentioned before, the PERM system has the advantage of having decreased the processing time of such applications with the Department of Labor. Cases that were filed before the PERM system began were transferred to Backlog Reduction Centers that were specially created to complete the review of those applications. As of March 2006, the Department of Labor estimated that it had approximately 255,000 cases pending. However, there was no estimate as to when they might be able to finish processing those cases.