Permanent Work Visas (Green Card) FAQs
The Department of Labor flags certain cases for audit. The reason for the audit may be due to either random selection or review of information contained in the PERM application. With respect to audits that are triggered based upon review of information, audits are frequently found in cases where the employer's job requirements for the position exceed the minimum requirements established by Department of Labor. If your PERM case is selected for audit, it is important to obtain and submit all requested information to the Department of Labor in a timely manner.
An application cannot be withdrawn once it has been selected for audit. If circumstances have changed and the filed application is no longer valid or applicable, the application must be withdrawn. However, if an application is selected for audit, the employer may not avoid the audit by claiming the application is no longer valid or applicable. As per Department of Labor regulations, the employer will be held to certain audit provision standards.
The U.S. Department of Labor (DOL) has pre-determined a list of occupations (Schedule A) for which there is a shortage of U.S. workers who are able, willing, qualified, and available to perform the job. . Schedule A, Group I includes physical therapists and nurses. Schedule A, Group II includes aliens of exceptionality ability in the sciences and arts (except performing arts).
Due to the shortage of available workers in the Schedule A category, these occupations do not require the employer to obtain labor certification approval from DOL for employment-based permanent residence (i.e., green card) petitions. In essence, this expedites the permanent residency process. . For Schedule A petitions, the employer may simply submit a completed and uncertified Application for Permanent Employment Certification to the United States Citizenship Services (USCIS) when filing the I-140 employment-based immigrant petition on behalf of the applicant.
Q: Can an immigrant visa applicant switch jobs or change employers while the petition is pending for approval?
It depends on when and what stage of the immigrant petition process the individual is in. If one wants to switch jobs during the PERM process (alien labor certification), he or she would need to re-apply with a new PERM application with the new employer. If one has a pending I-140 employment-based immigrant petition and decides to switch jobs, then the individual would also have to start with a new PERM filing and new I-140 petition with the new employer. However, if the I-140 petition was filed concurrently with the I-485 adjustment of status petition, and both have been pending for more than 180 days, then one is eligible to ‘port’ the immigrant petition to a new employer, provided the new employer is willing and able to assume the responsibilities and obligations of a permanent employer (i.e. hire the person in the "same or substantially same" position and pay the prevailing wage as per certified PERM (ETA 9089)).
Q: How long do I need to be on a H-1B or a L-1 visa before my employer can sponsor me for a Green Card?
There are no specific time limits regarding how long one has to work in H-1B or L1 status before an employer may start the permanent residency process for his or her employee. In fact, because permanent resident petition is based upon future/prospective employment, one does not necessarily have to be working with that employer for them to file for permanent resident status. However, there additional important issues (company's capacity to pay, candidate's minimum experience requirements, etc.) that must be reviewed on a case by case basis to determine the best time to begin the labor certification process. We suggest that that you consult with an immigration attorney to discuss your case in detail.