Employment Based Permanent Residence For “Professionals” And Those With “Advanced Degrees”

By: Erin Williams, Associate Attorney of Kirby Gamblin Joseph, ABIL Lawyer
​Joseph Law Firm Immigration Blog

In a prior post, Employment-based Permanent Residency, Can You Sponsor Your ‘Skilled” or “Other Worker”?, we reviewed the basic process for Labor Certification/PERM as required for the “Skilled” or “Other Worker” categories.  The requirements that an employer must meet and document in order to sponsor a foreign worker for the EB-2 “Advanced degree” and the EB-3 “Professional” category are different from the “Skilled” and “Other Worker” categories.  Here, we will discuss the EB-2 “Advanced degree” and the EB-3 “Professional” categories.

First, we must determine if the employee is a “Professional” or if they fall into the “Advanced degree” category.  “Professional” positions are those requiring a bachelor’s degree for entry into the occupation. Think of accountants, engineers, or financial managers. These positions will still generally be considered Employment-Based Third Preference (EB-3).  The Employment-based Second Preference (EB-2) requires an Advanced Degree such as a master’s degree or higher.  Think of physical therapists, librarians, and economists.

In order to be eligible to file a PERM application for a the EB-2 “Advanced degree” or the EB-3  “Professional” category, a U.S. employer must demonstrate that it has a full time, permanent, bona fide position available.   This test of the U.S. labor market and the process of PERM can be broken into three (3) main steps, with three (3) mandatory and three (3) additional alternative sources of advertising and recruitment to be completed.

Steps 1 and 2 are the same for the EB-2 “Advanced degree” or the EB-3 “Professional” categories as they are for “Skilled” or “Other Workers.”  Please see the prior post, Employment-based Permanent Residency, Can You Sponsor Your ‘Skilled” or “Other Worker”?, for details on these critical, initial steps.  It is at Step 3 that the requirements become more substantial, the timing more complex, and the record keeping extremely important for sponsoring a foreign national employee.

Step 3: The employer must test the U.S. labor market using the specified means of the regulations for the EB-2 “Advanced degree” and the EB-3 “Professional” workers.  To complete this test, the three mandatory advertising and recruitment sources are required.

Mandatory Recruitment

1. Internal Posting Notice. The internal posting notice is posted at the employment site for 10 consecutive business days. It is then removed and this recruitment period remains “open and quiet” for 30 days to follow. Upon completion of the posting, the employer signs a certification. The posting and certification are retained for and included in the audit file.
2. State Workforce Agency (SWA) Online Posting. The position must be posted with the SWA in the state where the position is located for 30 days. At the end of the 30 days, this recruitment period remains “open and quiet” for 30 days to follow. Documentation of compliance with this step is printed from the SWA website and retained for the audit file.
3. Two (2) Sunday Print Advertisements.  The position must be published in the newspaper of general circulation for the work location. After the second publication of the advertisement, this recruitment remains “open and quiet” for 30 days to follow. Documentation of the advertising is obtained from the publisher and retained for the audit file.

Furthermore, the employer must complete three alternative, additional advertising and recruitment steps for all EB2 positions and EB3 positions that are “Professional”. These positions require the employer to advertise in three (3) additional sources from the following ten (10) options:

“Professional” and “Advanced Degree” Additional Recruitment Steps

1. Job Fair
2. Employer Website
3. Job Search Website
4. On-campus recruiting
5. Trade or professional organization
6. Private employment firm
7. Employee referral program with incentives
8. Campus placement offices
9. Local and Ethnic newspaper
10. Radio or television advertisement

After the completion of the publication of the advertisement source, each must remain “open and quiet” for 30 days to follow. Documentation of compliance with each step is obtained and retained for the audit file.

Consideration of Applicants and Filing Eligibility

Just as with the “Skilled and “Other Worker” categories, at the end of the open and quiet period, all interested candidates who have applied must be considered.  Applicants can only be disqualified for the position based on bona fide, job related, articulable reasons.  Some candidates may be disqualified based upon the application/resume they submit. Some candidates may need to be interviewed. In order to be deemed qualified, the candidate must meet each and every objective, minimum requirement and element of the offered position. All applicants and the outcome of their application and subsequent consideration must be recorded and retained in the audit file.

If a qualified, available applicant applies for the position, the employer cannot and does not file the online application.  The employer cannot demonstrate that there are no qualified, available U.S. workers and the process stops.  In this process, the employer is not required to hire the candidate who has applied.  The employer just cannot proceed with filing the PERM Application.

However, if there were no qualified, available applicants for the position, the employer will document the outcome, certify that it was unable to find a qualified, available U.S. work for the position and file the online application.

The employer is required to maintain an audit file for U.S. Dept. of Labor review for five (5) years from the date of filing the PERM application.  The audit file contains all of the documentation of the advertising and recruitment efforts, as well as records of the applications received, and a complete review of all the of applicants qualifications to demonstrate why the candidates were not qualified for the position as filed.

By DOL regulations the employer must pay all associated fees and costs, including but not limited to legal fees, advertising costs, etc.  The employer may not recoup or be reimbursed for these fees in any way.  The foreign national is not to be involved in the advertising, recruitment, or review of candidates during the recruitment phase.

Once the maze of the Labor Certification PERM process has been navigated, and the PERM Application is approved, the employer is eligible to file the next step: the Immigrant Visa Petition (Form I-140).  Visit again soon for details on the Immigrant Visa Petition and the issuance of Lawful Permanent Residence through Consular processing (for employees abroad) or Adjustment of Status (for employees present in a valid nonimmigrant status).