EB-2 or EB-3 PERM for Staff

If a Montclair State faculty or staff member is not qualified for either an EB-1 Outstanding Researcher or Professor petition, or an EB2 Special Handling petition, there is another option for a green card:   an EB-2  or EB-3 PERM (labor certification) for Faculty and Staff.

The PERM process is highly regulated, and the requirements must be met precisely or a denial will result. Accordingly, if it is even remotely possible that a hiring department will hire a foreign national, that department should involve IS in the process as early as possible.  IS involvement may mean the difference between an approval and a denial.  Additionally, upon request, IS will provide training to departments on how they should proceed if there is a chance that a foreign national will be hired.

NOTE: The Department of Labor (DOL) requires retaining all applications, files, correspondence and search documentation for 5 years from the date on the offer letter in the event of a DOL audit.

Qualifications

  • The position must be full-time.
  • There are no U.S. citizens or permanent residents who are qualified to perform the work as set forth in a detailed job description.  The requirements in the job description are the key to a successful case.  This is the reason that it is so important to involve IS as early in the process as possible.
  • EB-2 PERM Advanced Degree category applicants must possess an advanced degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field) and the prospective job must require an advanced degree.
  • EB-3 PERM Professional category applicants must possess a U.S. bachelor’s degree (or foreign degree equivalent), and the prospective occupation must normally require a bachelor’s degree.

Steps

1. IS files a request for Prevailing Wage Determination (PWD) electronically

Application process requires a wage determination from the Department of Labor (DOL).  This takes approximately 6 weeks.

2. IS files Labor Certification (PERM: Form ETA- 9089)

Adjudication, or processing of ETA 9089s, can run anywhere from 6 weeks to over a year, if there is no DOL audit.  If there is a DOL audit, the processing time may double.  The date on which the Labor Certification application is filed with the DOL is established as a “priority date” for the international employee, which is important later in determining how long the final step of the permanent residence process will take.

Once the DOL certifies an ETA 9089 and returns it to the employer, the employer must immediately sign the application and submit it in support of an immigrant visa petition (Form I-140) filed with the USCIS.

The Department of Labor (DOL) examines the application for Labor Certification to ensure that: (1) the employer has met the procedural requirements of the regulations; (2) there are insufficient U.S. and/or lawful permanent resident workers who are able, willing, qualified and available for the job offered; (3) the employment of the alien will not have an adverse effect on the wages and working conditions of U.S. workers similarly employed.

PERM requires employers to undertake (what the DOL has termed) “real world” recruitment efforts during the six (6) month period immediately preceding the filing of the labor certification application. The law permits Montclair State University to file a labor certification application based on the results of a recruitment search and hiring that has already taken place in some circumstance.  In other cases, recruitment must be repeated in order to “test” the labor market.  In ether case,  extensive documentation of the recruitment process must be gathered and retained for five years from the date of filing the ETA-9089.

*Employers must post a notice of the job opportunity at the worksite for not less than ten (10) business days. The notice must specifically designate the address where one viewing the posting can report complaints to an appropriate office of the DOL.

*Employers must place a job order with the State Workforce Agency

*Employers must run two Sunday newspaper advertisements, in a newspaper of general circulation in the area of intended employment.

*If the application is a professional occupation, the applicant/employer/sponsor must conduct three additional recruitment steps, listed in the regulations, as follows: (1) Recruitment for the position at job fairs; (2) Posting on the applicant/employer/sponsor’s website (internet or extranet); (3) Posting the position on a website other than applicant/employer/sponsor’s; (4) On-campus recruiting at Colleges or Universities (only if job offer does not require experience); (5) Listing in Journals of Trade or Professional Organizations; (6) Use of headhunters firms; (7) Employee referral program(s) (must provide incentives); (8) Listings in local ethnic newspapers; and/or (9) Evidence of radio and/or television advertisements.

*Following recruitment efforts, the employer must prepare and maintain a detailed recruitment report that fully and accurately describes the recruitment efforts undertaken and the results. This is achieved by the hiring department at Montclair State.  The recruitment report must include the number of positions available, the number of U.S. workers rejected which have been categorized by the job-related reasons for rejection. While not required as part of the report, in the event of an audit, the DOL may request copies of applicants’ resumes, sorted by the reasons for rejection.  The employer can only reject applicants for lawful, job-related reasons. The regulations make it clear that if an applicant lacks a skill that may be acquired during a “reasonable period” of on-the-job training, the lack of any such skill is not a basis for rejecting an otherwise qualified U.S. worker. The employer is required to interview all qualified U.S. and lawful permanent resident applicants.  Again, “qualified” is determined by the job description.

3. IS files a petition for employment-based immigration (I-140) with the U.S. Citizenship and Immigration Service (USCIS)

Through Form I-140 and supporting documents, the employer must prove that the beneficiary is qualified for the job as advertised.  USCIS evaluates the applicant’s qualifications for the specific preference category for which the University is applying.

4. IS files an application for adjustment of status (I-485) when priority date is current

Finally, after the I-140 is approved, the beneficiary must apply for adjustment of status for lawful permanent residence, either with the USCIS, or at a U.S. Consulate overseas.  The current priority dates can be found on the USCIS visa bulletin.   Note:  If the priority date is current when the I-140 is filed, the I-140 and I-485 can be filed simultaneously.

Items Required from Hiring Department

  • $580 for I-140 fee paid to “U.S. Department of Homeland Security”. Pursuant to the regulations, this fee MUST be paid by the department - Sample Invoice for Green Card Fees
  • FedEx account #
  • Name of department contact and phone extension #
  • Employment Verification Letter
  • All advertisements for position: original journals and web postings with dates
  • CVs of all applicants in connection with the search
  • Applicant Tracking Sheet listing all applicants' name, address, date of interview, and reason of rejection
  • Copy of initial tenure-track offer letter to international faculty person (including any amended offers)
  • Final report of the committee making the recommendation by way of Affirmative Action Report
  • Assuming the position is covered by a Collective Bargaining Agreement, a copy of page of the union salary schedule that was current at the time the alien began employment, with the alien’s starting salary highlighted

Items Required from Faculty/Staff Member

Click here for a comprehensive list.

Submit all documents to:

Victoria Donoghue, Director of Montclair State University, International Services, 22 Normal Avenue, Montclair, NJ 07043, phone: 973-655-6862, fax: 973-655-7726, donoghuev@mail.montclair.edu