Streamlined Employer-Sponsored Green Card Process: What You Need to Know

Table of Contents

1. Introduction
2. Overview of the employer-sponsored green card process
3. Changes in the employer-sponsored green card process
   • 3.1 Filing a prevailing wage determination
   • 3.2 Recruitment process
   • 3.3 Filing the PERM application in the FLAG system
4. Changes to the PERM application form
   • 4.1 Number of employees on payroll
   • 4.2 Dual representation
   • 4.3 Type of work site
   • 4.4 Foreign language proficiency requirement
   • 4.5 Combination of occupations
5. Implications of the changes
   • 5.1 Auditing of PERM applications
   • 5.2 Business necessity justification
6. Conclusion

📝 Changes in the Employer-Sponsored Green Card Process

The employer-sponsored green card process, also known as the PERM process, has recently undergone significant changes. In this article, we will discuss these changes and how they impact individuals and employers who are interested in obtaining a green card through employment sponsorship.

1️⃣ Introduction

The employer-sponsored green card process is a complex and lengthy procedure that allows employers in the United States to sponsor foreign workers for permanent residency. It involves various steps, including filing a prevailing wage determination, conducting recruitment efforts to hire U.S. workers, and submitting the PERM application. Recently, the Department of Labor has introduced significant changes to this process.

2️⃣ Overview of the employer-sponsored green card process

Before diving into the recent changes, let's provide a brief overview of the employer-sponsored green card process. When an employer wishes to sponsor a foreign worker for a green card, the first step is to file a prevailing wage determination, which outlines the job's details, including job title, duties, required experience, and the job location. The Department of Labor then reviews this request and determines the appropriate wage that the employer must pay to the sponsored foreign worker.

Following the prevailing wage determination, the employer must engage in a recruitment process to show that they have actively attempted to hire a U.S. worker for the position but were unable to find a suitable candidate. Once the recruitment process is completed, the employer can file the PERM application, also known as the ETA-9089.

3️⃣ Changes in the employer-sponsored green card process

The recent changes to the employer-sponsored green card process primarily revolve around the submission of the PERM application in the FLAG system. Previously, the PERM application was filed separately from the prevailing wage determination in a different system. However, as of June 1st, the ETA form 9089 is now being submitted through the FLAG system.

3.1 Filing a prevailing wage determination

The prevailing wage determination process remains unchanged. Employers are still required to file a request through the FLAG system to determine the appropriate wage for the sponsored foreign worker. The Department of Labor will review the request and provide a wage that the employer must pay or exceed.

3.2 Recruitment process

The recruitment process, which aims to demonstrate the employer's efforts to hire U.S. workers, remains an integral part of the green card process. Employers must show that they have conducted recruitment efforts through various channels but were unable to find a qualified U.S. worker for the position.

3.3 Filing the PERM application in the FLAG system

The significant change in the employer-sponsored green card process lies in the filing of the PERM application. Previously, it was filed in a separate system. However, as of June 1st, the PERM application is now being processed and filed within the FLAG system. This consolidation aims to streamline the application process and provide a more efficient and centralized system for both employers and the Department of Labor.

4️⃣ Changes to the PERM application form

With the implementation of filing the PERM application in the FLAG system, certain changes have been observed in the application form (ETA-9089). While not an exhaustive analysis, let's highlight some of the notable changes:

4.1 Number of employees on payroll

The updated form now includes a question asking the employer to provide the number of employees on payroll in the area of intended employment. This information helps the Department of Labor assess the employer's workforce and the impact of hiring a foreign worker.

4.2 Dual representation

Another significant addition to the PERM application form is the question regarding dual representation. Employers are asked whether they have contracted with an agent or attorney who also represents the sponsored foreign worker. This inquiry aims to ensure transparency and avoid any conflicts of interest.

4.3 Type of work site

The new form requires the employer to specify the type of work site where the foreign worker will be employed. This can be the employer's business premises, private household, or the employee's private residence. Clarifying the work site allows the Department of Labor to assess the work environment and its implications for the job opportunity.

4.4 Foreign language proficiency requirement

The updated form also includes a new requirement for positions that involve proficiency in a foreign language. If the job duties require the foreign worker to have language skills, the employer must complete an additional appendix and provide a business necessity justification. This documentation helps clarify the importance of foreign language proficiency in performing the job.

4.5 Combination of occupations

Similarly, if the job opportunity involves a combination of different occupations, the employer must complete an additional appendix and provide a business necessity justification. This requirement applies when the position requires the foreign worker to perform various tasks or responsibilities spanning different occupations. The employer must justify why such a combination is essential for the job.

5️⃣ Implications of the changes

Understanding the implications of these changes is crucial for individuals and employers navigating the employer-sponsored green card process. Two key areas to consider are the auditing of PERM applications and the business necessity justification.

5.1 Auditing of PERM applications

The PERM application may undergo audits conducted by the Department of Labor. While audits can occur randomly, certain factors may trigger closer scrutiny, such as foreign language proficiency requirements and positions involving a combination of occupations.

Historically, the Department of Labor audits applications with foreign language requirements to ensure that there is a genuine business need for these skills and that the role was not tailored specifically for a particular foreign worker. Similarly, positions requiring a combination of occupations may trigger audits to verify the business necessity for such job requirements.

5.2 Business necessity justification

The changes in the PERM application now require applicants to provide a business necessity justification upfront, rather than waiting for an audit. This places more responsibility on employers to clearly articulate the reasons behind foreign language proficiency requirements or the combination of occupations. Ensuring the business necessity is thoroughly explained strengthens the chances of a successful application and avoids potential audits.

6️⃣ Conclusion

The recent changes in the employer-sponsored green card process signify a shift towards a more streamlined and centralized application system. The transition of filing the PERM application within the FLAG system brings several updates to the application form, including inquiries about the work site, dual representation, and additional requirements for foreign language proficiency and combinations of occupations.

While it is too early to determine the full impact of these changes, understanding the implications, such as potential audits and the need for business necessity justification, is vital for both applicants and employers. Staying informed and prepared will help navigate the employer-sponsored green card process more effectively.

FAQs:

Q: What is the employer-sponsored green card process? A: The employer-sponsored green card process allows employers in the United States to sponsor foreign workers for permanent residency. It involves various steps, including filing a prevailing wage determination, conducting recruitment efforts, and submitting the PERM application.

Q: What are the recent changes in the employer-sponsored green card process? A: The recent changes include the consolidation of filing the PERM application in the FLAG system, where applicants must complete the form ETA-9089. The updated form includes questions about the number of employees on payroll, dual representation, work site type, foreign language proficiency requirements, and combinations of occupations.

Q: How do the changes impact the application process? A: The changes aim to streamline the application process and provide a more centralized system for both employers and the Department of Labor. However, they also introduce additional requirements and the potential for audits, emphasizing the need for thorough business necessity justifications.

Resources:

• Department of Labor: link