Below are the most common immigration options for employment in the U.S.

Employment based permanent residency sponsorship

In most instances, the first step in sponsoring a foreign national employee for permanent residency requires filing an Application for Permanent Labor Certification with the U.S. Department of Labor (DOL). The labor certification process, known as PERM (Program Electronic Review Management), must be complied with in order to satisfy the Immigration Service, known as USCIS, that the position offered to your foreign national employee will not displace qualified American workers.

The Perm Process

In essence, the PERM program requires employers to conduct recruitment of potentially qualified U.S. workers before filing a labor certification application on behalf of your foreign candidate.

Upon initial acceptance by DOL, applications, which are not summarily approved, will be selected for audit. Some applications will be randomly selected for audit without regard to the results of your efforts, even if no qualified U.S. workers applied for the job opening.

If a labor certification application is audited, you will be required to submit, within thirty days, all documentation confirming that the requirements of the recruitment process have been met and that your sponsored candidate qualifies for the position. That is why it will be necessary that all the recruitment paperwork be readily available if requested.

If the audit documentation shows qualified U.S. workers are available, the application could be denied. Before making a final decision, DOL could also require additional supervised recruitment for the job opportunity. 

Prevailing Wage Determination

Each PERM case requires a prevailing wage determination from the DOL to assure that the salary you are offering the foreign worker is not below existing salaries paid U.S. workers. An employer must pay the higher of the actual wage offered or the prevailing wage in the county where the work is to be performed. We will work with you to obtain an accurate job description for the position for which certification is being sought. The education, job duties, and experience requirements for the job opening have to be those normally required within your industry and your company and these factors will determine the precise level for calculating the prevailing wage required. As a general rule, you cannot require U.S. applicants to possess training, education and/or experience, which the candidate did not possess when initially hired, if already working for you.

Mandatory Recruitment

The Recruitment process must be completed before the labor certification application is filed. The following mandatory recruitment efforts are required:

1. 30-Day Job Posting with State Employment Office Job Bank or Website;
2. Two Sunday newspaper ads in the area of intended employment; and
3. An in-house notice must be posted at the place of intended employment for at least ten consecutive business days.

Additional Professional Recruitment Steps:

Professional positions (those requiring attainment of a Bachelor’s degree or higher for entry into the position) require additional recruitment steps in addition to those referenced to above. The regulations require that recruitment for a professional position also demonstrate three additional forms of recruitment from the list of ten provided by DOL as follows:

1. Job fairs;
2. Employer’s website;
3. Job search website other than the employer’s;
4. On-campus recruitment;
5. Trade or professional organizations or publications (newsletter or journals);
6. Private employment forms;
7. Internal employee referral programs where there is an identifiable incentive;
8. Campus placement office listing if the job requires a degree but no experience;
9. Local and ethnic newspapers to the extent appropriate; or
10. Radio and television ads.

Of these three additional forms of recruitment, two must be undertaken within 180 but not less than thirty days before filing, yet one can take place within thirty days of filing the labor certification application.

Please note that no documentation is submitted to the DOL when the application is initially filed. However, in the case of an audit, there are only thirty-days to provide the required documentation regarding recruitment. It is therefore absolutely essential that the required paperwork be readily available prior to filing.

Recruitment Report

DOL requires that you maintain a final Recruitment Report with all your recruitment documentation. Due to its importance, it is therefore necessary that all paperwork be retained as you undertake recruitment. The Recruitment Report must contain, at a minimum:

• A description of the actual recruitment undertaken and the results;
• The number of resumes or applications received;
• The number of people hired from the recruitment efforts, if any; and
• The number of U.S. workers rejected, categorized by lawful, job-related reasons for rejection.

We will assist you with the preparation of that report. You however, can disqualify any U.S. applicant who is not able, willing, qualified, or available for the position at the place of the job opportunity, as well as anyone who does not meet the minimum requirements of the advertised position.

DOL has mandated that the employer retain all recruitment documentation for 5 years.

The Immigrant Visa Petition

Once DOL has approved the labor certification, an Immigrant Visa Petition will be filed at the USCIS Service Center having jurisdiction over the place where the job is to be performed. The petition must be filed with:

• The approved labor certification and proof that your sponsored alien meets the particular job requirements listed in the labor certification, e.g. education and work experience requirements; and
• Proof that your company is capable of paying the prevailing wage from the date of filing the labor certification application

Once approval of the Immigrant Petition is obtained the sponsored individual will file their final application for permanent residency either with the Immigration Service in the United States or the U.S. Embassy in their home country.

L-1 VISAS FOR TRANSFERS OF FOREIGN EMPLOYEES TO THE US

A parent, branch, affiliate or subsidiary of a US company may qualify for transfer of its employees to the US so long as the employee has been in continuous employment abroad with the qualifying foreign employer for one year within the three years preceding the time of L-1 petition filing on the employee’s behalf.  Only executives, managers and those with specialized knowledge of the company’s operations are eligible for L-1 visa issuance.

Under L-1 regulations it is possible to transfer a qualified employee for the purpose of opening a new office in the US.  A minimum 12 month commercial lease will be required as well as establishing the legal relationship between the foreign and US company.  A detailed business plan explaining the company’s objectives in the US will also be required.

Before the foreign employee can apply for a visa abroad, the company must file a petition for L- 1 status with the Immigration Service in the US and this petition must be approved in advance of the visa appointment. Substantial and well-presented documentation is the key to success in procuring L-1 petition approvals.

O-1 VISAS FOR INDIVIDUALS WHO POSSESS EXTRAORDINARY ABILITY

Temporary work visas also exist for foreign nationals who have extraordinary ability in the sciences, arts, education, or business as the result of sustained national or international acclaim. Extraordinary by regulation is defined as a level of experience indicating that the person is one of the small percentages who have risen to the very top of their field of endeavor. The Immigration Service has specific checklists which provide the types of evidence that must be submitted in support of an O-1 visa application. One may use expert recommendation letters, media articles, awards, and similar documentation.

An O-1 applicant may not petition for him or herself. Rather, one must use a US-based agent for cases where one is traditionally self-employed or where there is a foreign employer. As with all the employment categories, a well-organized and heavily documented presentation is key to obtaining prompt approval from an agency which strictly adheres to its own guidelines.