What is a PERM, you ask, from the previous post? Well, it is from here onwards that begins the next process of trying to take a real shot at the American Dream – The Green Card. To qualify for a Green Card through an employer you need to successfully pass through three successive phases. Without a guarantee of getting it, we had to cough up almost $20, 000 and years of paperwork processing – ICF paid a little over 50% and I had to invest the rest. I call it an investment because calling it an expense would make one feel the unfairness of it all a little more.
Phase 1: Conduct a Labor Market Test and Obtain a PERM Labor Certification
For my category, known as EB2/EB3, we first had to prove that I was being paid a reasonable wage. This process is called getting the Prevailing Wage Determination (PWD) from DoL which sets the base salary to ensure I am being paid at least a market rate. To do this, ICF’s immigration team worked with me, my manager and HR in exhaustive detail to write up my daily duties into a job description, role requirements and determine the prevailing wage for my labor category. After submission we experienced pin drop silence for months as we waited for the Department’s verdict. In April 2017 we got the approval. One step, check; another 20 more to go.
Next, we had to prove that Mohamed Baba wasn’t taking a job away from an existing U.S. Citizen. The lawyers worked with us to put my own job out in the market for open recruitment to hire another person to take my job (I know). This went on for 60 days in the market via print and online recruiting channels like the Washington Post. If a qualified U.S. job applicant applied for my job, ICF would have to interview them – and if a single candidate was qualified my whole application would be rejected and we’d have to start again from scratch.
Pause here, again, and think what that period of 60 days feels like. Honestly, I thought I had no chance. I mean, I know it’s a specialized job but I didn’t think there was anything that special that they wouldn’t find a qualified American in 60 days to snatch my career away. With this economy I’m as replaceable as a milk carton.
As Life would determine this, it turned out that 60 days of recruiting from May through June showed us that no candidate seemed to have wanted my job or thought they could do it (some would be insulted; I was grateful). We were then cleared to move to the next step of filing an ETA Form 9089. This is an Application for Employment Certification with the DoL. Only now did we arrive at the end of Phase 1.
Phase 2 & 3: File Form I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Adjustment of Status)
We then moved onto filing the Form I-140, Immigrant Petition for Alien Worker. This petitions that I am eligible for the Green Card based on my job and that I have an employer that is willing to hire me based on the details established with the DoL.
With the approval of an ETA Form 9089 also comes the establishment of what is known as the all-important Priority Date. This variable is one of the most critical dates in this entire process as it establishes your number in the queue for immigration visas. Since visa quotas are assigned based on the place where someone was born, my being born in Sri Lanka put me in a preferred category called the Rest of the World (ROW). Some other categories include China, India, Mexico and Philippines. For instance, the reality is that folks from China and India are sometimes looking at backlogs of over 10+ years from the time their ETA Form 9089s get approved. As David Bier for CATO writes “Green Card waiting time doesn’t move linearly like real time does. It stops, starts, and even runs in reverse”.
Luck/fate decided Sri Lanka for me, for no credit or action of my own doing. Therefore, the ROWs have priority dates that are current since not many applicants have come from these countries relative to the numbers from categories like India and China. As a result, some good news in a perfect storm of uncertainty was that our priority dates were good (i.e. no queue).
Back to our story. So if the priority date is current, Form I-140 can be filed at the same time with the I-485 Application to Adjust Status which is the final filing to request the H1-B status be adjusted to an immigrant status (i.e. Green Card). Filing both forms together is known as a concurrent filing which we were able to do for my spouse, Zuhur, and myself.
One would think that after having reached the final stage of this process it would be smooth sailing from here on. No.
As we discovered, there were plenty of more pitfalls awaiting us to…you guessed it, face the scenario of “sorry, pack your bags; leave”. After we filed both forms concurrently within weeks we were requested to present ourselves for biometric finger printing. Poor Zuhur who was pin balling between the U.S. and Canada had to catch another flight to make it just for finger printing in July 2018. In August we received our temporary Employment Authorization Documents (EADs) which allowed us to work in the U.S. for a year at any employer till the Green Card is issued (if).
But little did we know, awaiting us was a sinister present from the Trump Administration.