Attracting qualified talent is among the most important – and most challenging – tasks for a U.S. business. Most business-owners will tell you that a company lives or dies by the quality of its employees. These same owners will also tell you that good talent is hard to find. It is for these reasons that the U.S. economy relies on immigration to stay competitive.
A couple statistics: 1) Foreign-born workers account for nearly 20% of the entire workforce in the U.S.’ 30 fastest growing occupations; 2) U.S. employers will need to fill nearly 10,000,000 jobs in these sectors in order to stay competitive.
It is no surprise then that a vast majority of large U.S. companies take advantage of employment-based green card sponsorship in order to attract and retain top global talent. It is through this process that many companies thrive.
In our decade of immigration practice, we have successfully represented hundreds of employers and employees in the green card process, but have also encountered hundreds more who are overwhelmed by the complexities of sponsoring employees for permanent residency. In order to address these anxieties, we have prepared this guide. We hope that it clarifies some of the more complicated aspects of employment-based sponsorship and also serves as a resource when planning your company’s recruitment strategies.
This article is aimed to help you and your business learn how to recruit top global talent. The guide is intended for business owners who intend to implement transitional outsourcing programs where talent is initially employed overseas but with a path towards US residency. This method often results in a massive competitive labor advantage, as well as a more efficient employee training strategy.
The hiring U.S. employer’s primary responsibility is to comply with the regulations set forth by the Dept of Labor and USCIS. The foundational requirement for both of these agencies is that the employer is truthful regarding the availability of the position (i.e. that there is a real job offer).
Secondly, the employer agrees that the employee will be paid the wage that is listed on the PERM and the I-140 petitions. This wage is decided at the very beginning of the process, so the employer is aware of this responsibility from the outset.
Once the employee’s visa is approved and he/she is in the U.S., the employer-employee relationship is similar to any other. At this point, the employee is free to terminate or promote the employee and the employee is free to quit, if they choose.
The process will be managed by an immigration attorney and should not interfere with employer’s regular business practices.
THE PERM PROCESS
STEP 1: PREVAILING WAGE (1-3 months); Our office files a prevailing wage request with the U.S. Dept. of Labor to determine the minimum wage for someone in that job title. The area, job title, and other factors will determine the outcome.
DOCUMENTS REQUIRED; 1. Job Description 2. Official Name of Employer 3. Tax ID 4. Job Site Address
DOCUMENTS FROM THE EMPLOYEE; 1. Diploma 2. Education evaluation & translation of diploma 3. Resume/ Curriculum Vitae 4. Experience Letters, which should include all skills and experience required for the job position.
STEP 2: ADS (60 days) Once the employer’s immigration attorney has received the Prevailing Wage Determination, the job order is prepared. This is a form that is submitted in the U.S. state where the employment is located. This form is submitted for 30 days to locate a qualified US worker or permanent resident.
At this stage we also place job ads in 2 Sunday newspapers.
A spreadsheet is then provided to keep track of any applicants for the position.
STEP 3: PERM FILING (3-6 Months)
Roughly 60 days after the recruitment has been initiated, we will prepare and file the PERM form.
At the date of this writing PERM processing times were 90 days.
Once the PERM is approved by the DOL the I-140 Stage of the PERM can begin. This can be premium processed within 15 days.
Documents required from the employee: 1. All previous Form I-797 Approval Notices 2. Form i-94 3. Passport 4. Payroll paycheck stubs from the last two pay periods 5. Transcripts 6. W-2 wage and tax statement 7. All prior Forms I-20ID 8. Previous EAD cards.
Documents from Employer: 1. Ability to Pay documentation
CONSULAR PROCESSING (3-4 Months) When the employee’s priority date becomes current per the Visa bulletin then our office begins preparing the employee for an interview at the U.S. Consulate abroad. At this stage the employer’s only responsibility is to issue a letter showing that the position is still open for the employee.
Shortly after approval at the Consular interview, the employee can enter the U.S. as a permanent resident.
Frequently Asked Questions
Do I have to pay and hire the employee as soon as I agree to sponsor?
No. The sponsorship is for a future position, so you are under no obligation to hire until the applicant’s petition is fully approved (roughly 18 months).
Do I have the option to hire the applicant before the petition is approved?
Yes. You are free to hire the employee at any time in the process prior to entry in the US.
If I hire the applicant while they are abroad, how much do I have to pay them?
It is up to you. There are no USCIS limitations regarding how much you have to pay a non-US worker.
When must the employer start paying the Prevailing Wage that is listed on the petition?
When the employee arrives in the U.S. and begins working for you here. The employer can begin paying the prevailing wage at any point, but is under no obligation to do so until the employee actually enters the United States and begins working.
How long must an employee continue to work for an employer after the green card petition is approved?
There is no set time that the employer must retain the employee. Since the employment relationship is “at-will”, the employer can treat the employee like any other worker. However, if the employee decides to quit early on, it may raise problems for his/her future citizenship application.
Does it matter which countries the employees are from?
All EB-3’s filed now are being processed within 18 months, with the exception of those filed for nationals of India, China and the Philippines who are subject to lengthy backlogs.
How long does the job need to be held open for?
The job must be held open until the processing for the EB-3 approval is complete. Towards the end of the process, the employer must provide the employee with a letter to take to the U.S. consulate in their home country that states that the job offer is still open.