Legal Question in Immigration Law in California

You're welcome; I'm not sure I understand as the facts don't include I really need to know what is fully going on. If the green card is not based on marriage, divorce is not relevant to getting the green card. But as an H-1, you're lucky in that your employer wishes to employ you and your marital status doesn't matter. Assuming you're otherwise admissible, I would go for it.

Getting a green card through labor certification (the step most likely after the H-1) can be tricky business. Below is an article I wrote on the labor certification process.

I would be happy to help you out if you contact me offline. Check me out at http://www.yardum-hunter.com, phone at 818 609 1953 or email me at [email protected]. Until then, please don't rely on this as legal advice.

Alice M. Yardum-Hunter, Attorney at Law, Certified Specialist, Immigration & Nationality Law, State Bar of CA, Bd. of Legal Specialization

A ?Super Lawyer? 2004 ? 2009, Los Angeles Magazine

Acquiring Permanent Residence through Labor Certification

By

Alice M. Yardum-Hunter

? January 13, 2009

1. What is a labor certification?

In order to obtain permanent residency (?green card?), an individual must either be a relative of a U.S. citizen or permanent resident, own a significant business (half a million or a million dollars), be an intracompany transfer, be in the national interest of the U.S., have extraordinary ability, or a firm job offer in the U.S. as unskilled or skilled worker, bachelor or master degree professional or person with exceptional ability. All these workers are in the second and third employment based immigration categories. They are aliens who secure permanent residence through their work with job offers who are not in the U.S. national interest. When one has a firm job offer, a labor certification is usually first required in order to obtain permanent residence. The labor certification demonstrates a valid job exists; that there are no qualified, able, willing and available U.S. workers to fill the position based on duties and requirements that we delineate; and that the hiring of the foreign worker will not negatively affect the US labor market.

The U.S. Department of Labor (DOL), independent of the Citizenship and Immigration and Services (CIS, legacy INS) grants the labor certification. Upon approval of the labor certification, it is submitted to CIS (and possibly the Department of State, DOS) as the basis for permanent residency.

The application process has dramatically changed as a result of ?PERM,? Program Electronic Records Management. This revolutionary process condenses to the stated goal processing time of 45-60 days (for ?clean cases,?) the prior existing six month to five-year process of the first step toward permanent residence. Time frames and recruitment requirements in theory no longer vary as they did, but from a practical point of view they still do. Until recently, there were no decisions coming from the Department of Labor. As of now, cases filed in May through July 2008 are being approved. The regulations for the first time specify minimum required types and amounts of recruitment. The form is generally filed electronically to avoid government user error in data entry. Each question on the application relates to a specific issue of law.

Just because PERM is supposed to be more concrete than the previous standard processing before 2005, practice has shown otherwise. The process is less concrete. Therefore, it is very important to prepare cases as thoroughly as possible at the front end to get faster adjudications once filed. In counsel?s experience, processing times are somewhat shorter under PERM than previously, however for China or India, the later of which is backed up with ?priority dates? current for people who filed labor certifications before October 1, 2001 in the third preference (professionals with bachelors degrees) and June 1, 2003 for second preference (advance degree aliens and those with exceptional ability).

Approximately 75% of PERM labor certification cases are approved nationwide. This firm?s success rate to date has been 100% excerpt for one case in more than one thousand. This cannot, however, guarantee success in a particular case. There are many minute details necessary for successful processing. Error in any one of them could create a denial, particularly as the form is electronically generated. Therefore, it is important that an application be very carefully crafted to best assure success.

The electronic form, the Application for Permanent Employment Certification, Form ETA 9089 combines two former forms by including both employer and employee information. The old forms were four pages, but with attachments could be as long as 10 pages. The PERM form is 10 pages without any information filled in, however, applications can go on for many more pages. The form is signed after it is certified by the Department of Labor, before filing the I-140 petition, Offer of Employment by the employer with the CIS. In general, the PERM form consists of the details of the employer, the job offer, and minimum requirements for a qualified person to engage in the position (education, experience and any special required knowledge, skills, use of tools, etc.), the recruitment done (the job must be first offered to potential U.S. workers), prevailing wage information (which is a minimal wage required to be paid for a particular case), and information about the alien personally and his/her qualifications for the position offered. The alien must qualify for the position as described at the time of filing.

As mentioned above, the objective of the labor certification is to ensure that the alien will not displace any U.S. workers. For this reason, the application requires the employer to conduct pre-filing recruitment for the position. The position will be advertised in two Sunday newspaper ads and a job order will be posted in applicant?s state employment services website for 30 days. In addition to these two means, other recruitment may be necessary depending on whether the job is professional or not. Professional jobs are those which require and which the alien holds a minimum of a bachelor?s degree (or equivalent). Professional jobs require an additional minimum three types of recruitment such as job fair, on campus recruiting, employer website posting, ad with a trade or professional organization, job search website, employee referral program, local or ethnic newspaper, or TV or radio spot.

When the employer can demonstrate that no U.S. worker is qualified for the position based on realistic, though detailed requirements, and that the job offer otherwise meets DOL regulations, a labor certification is issued.

A great benefit of PERM allows unskilled jobs which were viewed as in abundance in the job market to be the subject of labor certification. In the past, certain positions could not be certified absent a waiver of the general rule that the position was in abundance. Now, all jobs in the U.S. are certifiable. Waiver for certain positions is no longer required.

Applicants for the position offered will learn of the job through various recruitment means. When resumes are received, the employer must make initial contact with him/her quickly. Counsel advises that initial attempted contact should be made within a week of receipt of a resume. The contact may be by phone or if the employer is not able to make contact by phone, by certified mail, for further consideration when the person looks as though he qualifies or may qualify. An employer cannot assume that a resume includes each and every qualification of a job applicant and must inquire as to qualifications when the applicant may qualify. If contact with a job applicant is not done timely, the DOL can deny the case. If a person is clearly unqualified on the basis of a resume, the employer may reject such person without attempt to interview because he is clearly not qualified. If a person may be qualified, the employer must interview that person (telephonic interview is acceptable) and give a lawful, job-related reason why the person is not qualified or prove that s/he attempted to contact twice but was unsuccessful.

Counsel will prepare a questionnaire or spreadsheet for the employer to assess each job applicant, and prepare the recruitment letter/report but will not be involved with interviewing applicants or receiving their resumes unless counsel is hired to screen all job applicants, whether in connection with a labor certification or not. At the end of the recruitment period, the employer will be asked to account for any persons who responded to their recruitment, referred from EDD and from the job posting.

Under current practice, ownership or control in the petitioning employer by the alien makes it difficult to prove that the position is open to a US worker. Small companies have a more difficult time showing that the alien does not control the business to the extent of not controlling the decision that the job remains his/hers, i.e., the likelihood of considering a qualified U.S. worker. This shows whether the correct intentions of the employer are present. Therefore, if there is a choice, an alien should seek employment with an entity in which s/he does not have ownership or control, at least for labor certification purposes. Ownership and control is essential for some other sorts of immigration classifications. This becomes an issue upon audit as the PERM form asks about the size of the employer and whether there is a familial or ownership relationship between the employer and the alien. Specific documents, when requested, must be provided to show there is not overriding ownership or control of the position by the alien in the event of an audit. If this cannot be proven, the case is subject to denial. This basis of denial is avoidable with proper planning.

2. How does the labor certification process work?

The underlying work that the attorney handles is more time consuming under PERM, however, PERM simplifies the paperwork that the government receives. The form permits the employer to ?attest? or state under oath certain facts, rather than submit extensive proof of fulfilling the requirements. Instead, supporting documentation will be maintained at the employer?s place of business for five years, ready in the event of an audit. The regulation will be enforced by audit. Approximately a third of the PERM applications filed are the object of audit, which can take some months or longer to resolve. Cases are audited for cause and at random. The largest immigration law firm recently had all their labor certifications audited by the Department of Labor due to practices that attorney Yardum-Hunter does not engage in. If certified, the labor certification will be filed with the I-140 petition to the CIS.

If a case is audited, a response must be submitted in 30 days. The recruitment report, evidence of the recruitment methods, criteria for rejecting U.S. workers, information about the employer?s business, the need for any special requirements that require justification, and the like, submitted under current rules will have to be provided along with other extensive documentation to back up what was attested to on the form. As a result of the deadline, counsel will prepare cases in anticipation of audit. This is necessary as there will be little time to submit everything to the government. If a timely response is not received, the employer will be considered to have refused to exhaust administrative remedies and no review, whether administrative or judicial is possible. Also, at the discretion of the Certifying Officer, the Employer may also be required to conduct supervised recruitment for any future labor certification filings for up to two years. Upon submission of the back up documentation, either the application will be certified, denied or audited further. Additional recruitment may also be required. There is also an appeals process.

While there have been discussions of a filing fee for labor certifications, currently there is no filing fee payable to the government under PERM. However, there are filing fees paid to CIS (and DOS) later in the case.

One labor certification is required per employee. To prepare the case, we first analyze the job offer as compared to the alien?s background, articulate the minimum education, experience and any special requirements for the position, and obtain the prevailing wage for the appropriate job offer from the State Workforce Agency. Recruitment is done, the back up documentation prepared and retained by the employer, and the case is electronically submitted.

There is a law referred to as section 245(i) that created a bubble of cases in April 2001. Immigrant visa availability oversubscribed as a result, along with very high demand of usual cases, particularly for skilled and higher level workers from China and India. Attorney Yardum-Hunter predicted that while a PERM labor certification and I-140s would process relatively quickly, things would slow down due to retrogression in some categories. This happened.

There are a limited number of immigrant visas available annually. When supply is outstripped by demand, ?retrogression? occurs and a person must wait until his/her priority date becomes ?current,? or available, again. Retrogression began after a decade long hiatus in July 2005. It could take several years for positions requiring a minimum of a bachelor?s degree or less for most aliens to secure permanent residence, from the time of filing a labor certification until permanent residence is achieved if you?re born in one of the oversubscribed countries (Philippines, Mexico, India and China), however, it takes a shorter time, about three an a half years if you?re from anywhere else. So, currently even for the least oversubscribed categories, there is still a wait. This is in the third preference for bachelor?s degree or skilled workers with two years experience. For first and second preference classification, for intracompany transfers, extraordinary ability aliens, outstanding researchers, exceptional ability aliens and those with advance degrees, there is no oversubscription except for the four countries mentioned above. The higher the required qualifications for a position, the faster the green card process.

The negative effect of retrogression is that permanent residence cannot be approved until visa numbers become available and if oversubscription exists at the time an I-140 is approved and you?re ready to adjustment of status, that application cannot be filed or continue to be processed (if filed already) or an immigrant visa cannot be processed until such time as the priority date is current. For this reason, it is important to file early. It is critical to work with an attorney such as Ms. Yardum-Hunter who understands thoroughly how to utilize timing issues to a client?s best advantage.

Also, in close to 30 years of experience, attorney Hunter has observed that when the government quickens certain cases, resources are taken away from others, creating greater backlog elsewhere. It seems the government is constantly putting out fires, with the biggest blazes getting today?s firefighters. Please bear in mind that processing times are always subject to change. When processing times change, case strategy can change. Immigration advice is very time sensitive.

3. What happens after a labor certification is certified?

After labor certification approval there are two more applications: the I-140 petition to CIS, and the acquisition of green card status by adjustment of status through a CIS regional office in the U.S. or visa processing through the DOS at an Embassy or Consulate abroad. The petition affirms the relationship between the employer and the employee: that the employer is capable of hiring the employee in a permanent, fulltime position (through a showing of other payroll employees and financial viability to hire the alien), and the employee qualifies for the position by meeting or exceeding the requirements for the job on the labor certification. The adjustment of status in the U.S. or visa processing from abroad qualifies the alien as one who is admissible for immigration. Consideration of a person?s health (communicable diseases make a person inadmissible), criminal record, likelihood to become a public charge, and such, are examined. Sometimes waivers of inadmissibility are required.

Before or concurrently with an Application for Adjustment of Status (if priority date is current and the person qualifies for and prefers to adjust status rather than visa process), the employer files the CIS I-140 petition form on behalf of the alien. When filed alone in California, the I-140 petition currently takes one year and four months to process at the Nebraska Service Center as well as the Texas Service Center, with filing taking place depending on where you live.

Adjustment of status, whereby a person secures the permanent resident status here in the U.S. without traveling abroad takes varying times, depending on where the person lives, as well as what category they fall into under the Immigration and Nationality Act. At this time, it is not possible to file an I-485 due to visa unavailability in some categories from some countries. As a result, the total processing time in the U.S. cannot now be determined because of oversubscription. Ms. Yardum-Hunter can better tell your processing time based on more specific facts of your particular case though as details really count in analyzing how long things take. Perhaps you could be one person who achieves permanent residence within a matter of months rather than years.

The alternative, a three-step process involving an immigrant interview abroad may be beneficial, depending on processing times to adjust status in the U.S. The process also involves the cost to travel abroad (for an interview, which is not the case when adjustment of status is filed) and possible time and effort involved in extension of current nonimmigrant status. For usual cases in the U.S. there is no interview. Filing an extension of nonimmigrant status can be foregone after adjustment of status is filed, although there are rare disadvantages to foregoing the nonimmigrant status when adjustment of status is pending. When feasible and permitted under law, Attorney Yardum-Hunter generally recommends filing extension of underlying nonimmigrant status when adjustment of status is pending.

4. What are the responsibilities of the sponsoring employer?

At the outset, the employer must provide information about the company, its recruitment methods, description of the job duties and its requirements (education and experience required to make a person competent to perform a job), including possible special foreign or computer language, skill or knowledge requirements. The case is crafted step by step, like a beautiful sculpture, by the attorney and input from the employee and employer.

The most crucial area of responsibility for the employer is the recruitment effort. The employer must account for the candidates who responded to its recruitment efforts. It will be important to encourage the candidates to send the employer a resume, and the employer to obtain their name and address (snail and Email) for follow up. The employer must interview applicants who may qualify for the position and give lawful, job-related reasons why the person is not qualified.

In addition, all labor certifications require that the job opening must be posted manually (and through media if the position would be posted normally that way) for 10 consecutive working days at the place of employment. This posting must contain a salary (a range is OK as long as the bottom end is at or above the prevailing wage.) The results of the internal job posting must be made part of the record of recruitment just in case it is needed for an audit.

It is also important for the employer to advise any staff that will be answering telephones at the time of recruitment that the particular position is being advertised and is available.

After labor certification approval, the employer will be asked to sign the I-140 petition (submitted to CIS), sign a letter in support of the petition and provide documentation concerning evidence of the annual income of the company (tax returns, annual report, financial statement, etc.). The financial documentation assures that the employer has the ability to pay the alien, which it must do beginning from the time of filing the labor certification, as well as throughout the case. Financial information will also be requested at the very beginning of the case to assure there is no misunderstanding as to the required figures requested when the government asks for ?gross? and ?net? income later in the I-140. If the alien is interviewed by CIS, which occurs routinely for cases filed before April 30, 2001, but rare for cases filed later (sometimes at random or due to issues that arise), the employer will be asked to provide a letter and financial responsibility documents to verify the alien?s continued job offer. As an interview is not normally required, this is an additional service not part of attorney Hunter?s retainer agreement. This is the final stage of employer responsibility for labor certification based permanent residence. Upon obtaining permanent residence, the alien is to be employed with the employer under conditions that would apply to any person in the employer?s employ, except under limited circumstances in which the employee is permitted to switch employers before securing permanent residence.

The attorney fee and costs of recruitment (to attempt to locate a U.S. worker) for the labor certification portion of an employment immigration case must be borne by the employer, if one attorney represents both employer and employee. Historically, one attorney would represent both employer and employee. While your interests have the same goal, it is possible that a conflict of interest may develop during the case, and I will advise you of this if it were to happen. If the employee is not married and has no children, the percentage of the case attributed to the labor certification would be half in Attorney Yardum-Hunter?s opinion. If there is/are dependent spouse and/or children, the fee is higher, and the employee can be responsible for that fee. The purpose of this new rule is to discourage fraud in the immigration process.

If you are interested in pursuing this matter, please contact our office at the location above.

It sounds like your Employer is willing to sponsor you for a green card, which is great news. What is important during the preparation and filing of the PERM, I-140 and finally the I-485 is that you maintain your H-1B status. Whether or not you are married or divorced is irrelevant, assuming that you are the beneficiary of the green card (and not your wife). I would be happy to further assist you in these matters and can be contacted at [email protected] or 415-387-1364.