Despite being called “the green card” process colloquially, the permanent residence process can require up to three steps involving two federal government agencies before someone can receive an actual employment-based “green card” evidencing permanent residence status.

UAB’s role in the permanent residence process is essential to certify to USCIS and/or the Department of Labor that we want to set aside a job for a non-US citizen so that they can start on the path to permanent residence. After USCIS and/or the Department of Labor approve UAB’s parts of the process, the individual employee must take the final step and satisfy all the personal criteria for eligibility for the “green card” itself. The entire process can take up to two years at a minimum, and—for individuals from “backlogged” countries such as India and China — up to seven or more years.

EB-1B Process

Some employees will qualify for permanent residence based on their own achievements and criteria independent in combination with a tenure-track or permanent research job offer. This is known as the EB-1 preference category for “outstanding professors or researchers” and is the least expensive and burdensome for the employer because no recruitment or prevailing wage process with the Department of Labor is required.

If an employee contacts ISSS to begin the EB-1B process, we will first contact you for written approval for sponsorship from a faculty member before proceeding. Once approved, we will send you a check request memo for the USCIS filing fee(s) to be processed through Oracle.

Either the employee or the department can pay either or both of the USCIS filing fees involved (one for the Form I-140, currently $700; the other for premium processing, currently $1,440). The immigration regulations do not specify who must pay these fees. The current practice at UAB is for the department to cover the Form I-140 filing fee, since that is the employer’s part of the green card process, and the employee covers the premium processing fee if a decision within 15 days is desired.

USCIS review of an EB-1B petition is highly subjective, and the petition requires a substantial amount of supporting evidence, which the employee is responsible for collecting and providing to ISSS for review.

ISSS will review all supporting evidence provided by the employee and draft a support letter. We will send you a Word version for printing on departmental letterhead and wet signature by the sponsoring faculty member. Please return the support letter to us via campus mail—we prefer to file the petition with originals rather than scans.

Once the I-140 is approved, individuals must wait for the priority date stated on I-140 approval to become current before they can apply for adjustment of status to permanent resident (i.e., apply for a “green card”). The Visa Bulletin is issued monthly and can be monitored to check the priority date.

EB-2 Standard Recruitment (Non-Faculty)

Employees who do not qualify for permanent residence based on their own achievements can be sponsored in the EB-2 preference category for advanced degree professionals. This preference category requires the employer to complete a process with the Department of Labor colloquially known as “PERM” or “labor cert” (Application for Permanent Alien Labor Certification). At UAB, this is generally the green card path for our Scientist and Researcher career ladders, in addition to faculty who do not have a tenure-track offer or do not have the time or inclination to collect all the evidence necessary for an EB-1B. This chart attempts to summarize the most salient points of the EB-2 PERM process.

Preliminary Approval:

You will receive a chain of email communications contain explicit instructions about all four phases of the EB-2 process. First, the faculty sponsor and department chair must sign a Statement of Responsibility and return it to us to begin the sponsorship process. Even if the employee has already met with us, we will not move forward until we receive this form from the department.

Phase 1: Prevailing Wage Determination

Phase 1 of the EB-2 process is designed to prove to the Department of Labor that you are paying the international employee at or above the prevailing wage for this position in this geographic area. This requires ISSS to request a prevailing wage determination from the Department of Labor, which is an online submission process that takes about 3-4 months for a response and cannot be expedited. Once we receive the Prevailing Wage Determination Form from you, the employee will be “in line” for the ISSS PERM process.

It is crucial that the department determine the minimum requirements, in line with standard alternative minimum requirements in UAB job descriptions. The sponsored employee cannot be involved in determining the minimum requirements. Counterintuitively, the PERM process is not about what skills the sponsored employee possesses, but about what minimum education, experience, and skills are required for the job itself.

At UAB, we generally begin the EB-2 process after July 1 each year, which is when the Department of Labor issues the new set of prevailing wages nationwide. This also gives the potential for the longest validity period for prevailing wages, which gives us the longest amount of time to complete recruitment. Finally, it generally takes less time for the DOL to issue a prevailing wage after July 1 because more evaluators are devoted to the PERM process after July 1—before July 1, the majority of DOL evaluators are devoted to reviewing wage requests for the H-1B process.

Phase 2: Placing Ads and Recruitment Report

Phase 2 of the EB-2 process is designed to test the available US job market and prove to the Department of Labor that no minimally-qualified US workers are willing and able to take the job. The department must post a Notice of Filing in a conspicuous location for ten consecutive business days. We realize that many UAB offices are open to access over the weekends, especially in clinical/research areas. If you want to include weekends in the ten “business” day count, you must be willing to provide documentation that the office was open to employees on the intervening weekend. It is best just to post the notice for ten actual business weekdays.

Recruitment for a PERM can look quite different than usual UAB recruitment. It must be conducted at the times and in the media outlined on a schedule we will provide. This includes placing two ads in the Sunday Birmingham News (yes, the actual newspaper) and on the Alabama Joblink website, in addition to three other places. The recruitment period lasts a minimum of 30 days, and another 30-day “cooling off” period is required to allow applicants to apply even after the ads come down.

The department must contact all minimally-qualified US workers (including permanent residents, refugees, and asylees) by phone or email within 14 days and determine if there is any lawful, job-related basis for disqualifying them. If no qualified US workers are identified for position, the sponsoring department must provide lawful, job-related reason(s) for not hiring each US worker.

When recruitment concludes, ISSS reviews all of the ads and receives the recruitment file from HR in order to draft the final Recruitment Report. The Recruitment Report and all ads and applications must be kept on file for five years after the date the PERM is filed.

Phase 3: Filing the PERM

During Phase 3, ISSS enters all of the information from the ads, all of the UAB job description minimum requirements and duties, all of the sponsored employee’s credentials, and all of the employee’s work history into the online PERM form and submits for DOL review. Please note that the PERM itself is NOT a “green card.” It merely asks the DOL for permission essentially to set aside a position for the sponsored employee to be able to apply for a green card when one becomes available, sometimes years later.

The date on which the PERM is filed with DOL establishes a “priority date,” which determines when the sponsored employee can apply for an actual green card. It generally takes 4-5 months for the DOL to certify the PERM, and there is no way to expedite review.

The DOL selects some PERMs for random audit by issuing a Notice of Finding. If a PERM is selected for audit, ISSS will have about 30 days to respond, including uploading copies of the recruitment ads and applicant CVs and obtaining signed statements from the hiring manager and sponsored employee. An audit can add about 5 months to the total time necessary for DOL to certify (approve) the PERM. There is no way to expedite review.

Phase 4: Filing the Form I-140

While the DOL is reviewing the PERM, ISSS will collect the other background information needed to file a Form I-140 with USCIS. ISSS will receive electronic notification, and then about 3-4 weeks later the certified PERM itself will arrive in the US mail printed on special blue government paper. The sponsored employee must come to our office and sign page 8 of the certified PERM.

The Department of Labor’s role in the process is now complete, and the employer’s part of the Department of Homeland Security phase of the process begins. ISSS will prepare a USCIS Form I-140 and route it for signature. This can take a couple of weeks, depending on whether any signatory stakeholders are out of the office.

An I-140 must be filed within 180 days of PERM certification. We will need one check for $700 and strongly recommend a second one for $1,440 to secure premium processing (adjudication within 15 calendar days). Either the department or the sponsored employee can pay either or both of those fees—we just need checks made payable to “US Department of Homeland Security.”

EB-2 Faculty Recruitment

Special Recruitment for College or University Teaching Positions Under 20 CFR § 656.18

The Department of Labor requires “college or university teacher” positions to “involve some actual classroom teaching.” Additionally, the DOL has stated that “No minimum hours of actual classroom teaching is [sic] required to bring an application within the scope of the special handling procedures for college and university teachers. However, some amount of actual classroom teaching is required to bring an application within the scope of the special handling procedures.”

If the DOL cannot determine from the PERM application whether or not the job opportunity involves “actual classroom teaching,” it will request additional information requiring the department to specify how many hours of actual classroom teaching the position requires. ISSS is well aware that many UAB faculty perform crucial teaching functions outside of the traditional classroom environment, such as instructing medical students in clinical settings and during hospital teaching rounds. However, please be prepared to specify how many hours of classroom teaching the position demands.

Generic, open-rank ads that are not published in a national journal or its website equivalent and that do not state, at a minimum, the job title, minimum education and experience requirements and a generic description of job duties will not pass a DOL audit for special handling and cannot be used. Contact ISSS for a review of your recruitment materials prior to hiring if you need to sponsor an employee for a green card.

UAB must be able to document that the sponsored employee was selected for the university teaching position after a competitive recruitment and selection process through which the sponsored employee was found to be more qualified than any US worker who applied for the job.

Documentation of UAB’s competitive recruitment and selection process must include:

  1. A statement, signed by an official who has actual hiring authority for UAB, outlining in detail the complete recruitment procedures undertaken, including
    • The total number of applicants for the job opportunity;
    • The specific, lawful, job-related reasons why the sponsored employee is more qualified than each US applicant; and
  2. A final report of the faculty, student, and/or administrative body making the recommendation or selection of the sponsored employee at the completion of the competitive recruitment and selection process;
  3. A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication and stating the job title, duties, and requirements;
  4. Evidence of all other recruitment sources utilized; and
  5. A written statement attesting to the degree of the sponsored employee’s educational or professional qualifications and academic achievements.

If for (3) above you place an ad in the online version of a national professional journal, please print a copy of the ad as it appears on the first day published on the website and as it appears on at least the 30th day published on the website. Other evidence of the start and end dates of the ad could be in the form of an invoice for the job posting or an affidavit from the job posting website attesting to the dates the ad was published.

Do NOT list “preferences” (such as certain foreign language skills, preferred degree level, or field of specialization) in advertisements unless you want them listed as “requirements” on the PERM application ISSS later files. If you include requirements or preferences in job ads that are not listed as requirements on the labor cert application, the Department of Labor will deny the labor cert. You can, however, keep preferences in mind when evaluating the relative qualifications of all applicants.

A generic job web site is not the same as a national professional journal—a national professional journal website would include articles as well as job listings. According to NAFSA, the Association of International Educators, “The Department of Labor is generally satisfied with basic descriptions and does not require employers to list every job duty and requirement. Nevertheless, employers should be careful to craft their ads with an eye towards meeting the minimal content requirements of the regulation. For example, a pointer ad that includes only the employer’s name and the position title would most likely not hold up in the event of an audit.”

The department must provide a copy of the recruitment file and a summary of the recruitment process to ISSS. Journal tear sheets or printouts of electronically posted job ads are required.

The Immigration and Nationality Act (INA) requires UAB to certify that the hiring of an international employee will not adversely affect the wages and working conditions of US workers comparably employed. To comply with the statute, the wages UAB offers its international employees must meet or exceed the prevailing wage rate for the occupational classification in the area of employment. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. ISSS will request a prevailing wage determination from the DOL and prepare a posting notice for the department to post in a conspicuous location at the job site for 10 consecutive working days. An acceptable “conspicuous location” is in the immediate vicinity of posted federal wage and hour or OSHA notices. If the position is one for which UAB usually uses in-house media (print, electronic, or other) to recruit, the notice must also be posted there. The labor cert cannot be filed until 30 days after the 10th day the notices were posted.

ISSS will prepare the labor cert application, print for HRM review, obtain administrative signatures, and submit electronically. A copy of the recruitment file will be maintained in the Faculty Affairs Office for five years. ISSS must receive all necessary documents to file the labor cert application with the DOL within 18 months of the date on the hire letter.

Note: If a US worker more qualified than the prospective international faculty hire is identified during recruitment, the sponsoring department must discontinue the PERM process for the international hire and begin again in six months. Alternatively, if more than one position is open, the department can hire both the international employee and the more qualified US worker.

We already sponsored X for a green card. Why am I being asked to extend X’s H-1B status again?

As outlined above “sponsoring” someone for permanent residence is a multi-phase process. It can take years for someone to receive the actual green card. In the meantime, it is best practice for UAB/HSF to continue to extend the employee’s underlying non-immigration status (such as H-1B) in the very unlikely event that USCIS does not issue a green card. If USCIS ultimately does deny a green card application, the employee will need a status and work authorization to fall back on in order to remain in the US.