The process for obtaining lawful permanent residence (green card) status based on employment is composed of three phases: (1) the labor certification; (2) the visa petition; and (3) the application for permanent residence.

Labor Certification Application. A “labor certification” is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill the job (given the job's minimum requirements), and that the immigrant employee will be paid the “prevailing wage.” One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. It is extremely important that the labor certification application correctly describes the minimum requirements for the job as well as explains the reasons why these requirements are necessary.

In 2005, the Department of Labor drastically changed the way it processes labor certification cases. The primary difference between the new process (referred to as “PERM”) and the old process is how recruitment-related documentation is handled. Previously, supporting documentation such as newspaper ads and other recruitment efforts, justification of the job requirements, prevailing wage determinations, etc., were submitted when the labor certification application was filed. Under PERM, while the same documentation must be prepared or assembled, it is kept by the employer and only submitted if and when requested by the Department of Labor. The employer is required to retain this documentation for a period of five years.

Under PERM, occupations are classified as “professional” or “nonprofessional” and each classification has different recruitment requirements. Both classifications require two Sunday newspaper ads and a 30-day job posting with the State Workforce Agency (SWA). For professional positions, the employer must also comply with at least three out of 10 listed steps: (1) job fairs; (2) employer’s website;  (3) job search website other than the employer’s; (4) on-campus recruiting; (5) trade or professional organizations; (6) private employment firms; (7) employee referral program with incentives; (8) campus placement offices; (9) local and ethnic newspapers; and (10) radio or television advertisements.

Applying for a labor certification does not bind the employer legally. The employer remains free to dismiss the employee or take other personnel action with regard to the employee, as it would with regard to any other employee. Conversely, the application does not bind the employee to the employer either. Also, the employer may withdraw the labor certification application at any time.

Visa Petition. Upon approval of the labor certification, the employer must submit a visa petition to U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to USCIS that: (1) the job has been certified by the Department of Labor; (2) the immigrant employee meets all of the requirements listed on the labor certification; and (3) the employer has sufficient resources to pay the employee's salary. This step will also establish the immigrant preference classification. The most common classifications are “second preference” (normally a person with at least a master’s level education) or “third preference” (a person with less than a master’s level education). In some cases, the preference for which the immigrant employee qualifies may determine how long it will take to obtain legal permanent residence status. At times, it takes a person with a third preference approval longer to immigrate than a person with a second preference approval.

By the time the employer files the visa petition, the employee must decide whether he/she will apply for permanent residence here in the United States or at an American consulate abroad. Normally, the application for permanent residence will be processed here in the United States. There are, however, reasons that may dictate processing through an American consulate in the employee's home country; e.g., the need for frequent travel abroad, local USCIS time delays, or ineligibility for processing in the United States.

Application for Permanent Residence. As the last phase in the process, the employee applies for permanent residence. If the employee applies for permanent residence in the United States, it is called “adjustment of status” processing, and is handled through the local USCIS District Office. "Consular processing," by contrast, is where the employee applies for an immigrant visa through a U.S. consulate abroad.

In general, employment-based adjustment of status cases are not subject to interviews with the local USCIS District Office. On the other hand, individuals who undergo consular processing of employment-based cases are always required to attend an interview.

Upon approval of the application for permanent residence, the employee will be granted permanent residence and issued a “green card.”