By Elissa Taub
Most physicians obtain green cards in the EB-2 green card category through one of two paths: a physician national interest waiver (“PNIW”) or a permanent labor certification (“PERM”). While the end result is the same regardless of the path taken – the doctor receives a green card – the paths are quite different in terms of timing, costs and process.
PNIW Requirements
A physician is eligible for a PNIW if he or she makes a five year commitment to work full-time in an area designated as underserved by the federal Department of Health and Human Services (“HHS”). Generally, that five year commitment must be shown in an employment agreement with a term of five years. If the physician will be self-employed, he or she may execute an affidavit detailing the plans to establish the practice.
For purposes of the PNIW, full-time work is defined as 40 hours per week. This 40 hour per week requirement is not exclusive, however. If a physician will work at an underserved location for 40 hours per week, then the doctor may work at a non-underserved location for any hours in excess of those 40, if required.
A PNIW application must be accompanied by a letter from the relevant state’s department of health supporting the physician’s work as in the “public interest.” If a physician also is obtaining a J-1 waiver in the state, often the state will add the public interest language to the waiver recommendation letter, and that letter may be used for both the J-1 waiver and the PNIW applications. Otherwise, the state will create a letter specific to the green card process.
Because the state must be convinced that the doctor’s work at the specified underserved locations will be in the public interest, each state has its own rules and processes for issuing PNIW support letters. It is important to consult a state’s PNIW rules before deciding on this green card path to ensure that the physician will be able to obtain the required letter of support. For example, some states will recognize time the physician spent in training in an underserved area as satisfying part of the five year commitment, and other states will not. In addition, while some states limit their PNIW support to only those doctors who have obtained J-1 waivers in the state, most do not impose such a limit, and any doctor, even those who did their training on H-1Bs, can apply for a PNIW-based green card.
Once the letter of support is received, the doctor may file the Form I-140 petition with USCIS. Government processing times for a PNIW I-140 are about 4-6 months. Premium processing is not available for this type of petition. A PNIW typically is a physician’s self-petition. This means that an employer does not have to sign the forms or sponsor the petition. In addition, the employer does not have to pay any legal or government fees associated with the filing of a PNIW petition.
If the doctor is otherwise eligible, he or she may also file the I-485 adjustment of status application concurrently, even if the doctor is in the three years of J-1 service. This means that doctors in their J-1 service period (and immediate relatives) may obtain the work card (EAD) and travel document that come as part of the adjustment of status application. Doctors who have backlogged priority dates, such as those from India and China, may not file adjustment of status applications until they have a current priority date. For PNIW petitions, the priority date is the date on which the I-140 is filed.
As soon as a PNIW I-140 is approved, a doctor is eligible to port the petition to a subsequent employer in an underserved area. In this way, the filing of PNIW petition does not tie a doctor to a particular employer. Portability of the petition attaches regardless of whether an I-485 application is pending or not.
PERM Requirements
A PERM labor certification is a preliminary process through which an employer tests the US labor market to show that it is unable to find a qualified, available US citizen or lawful permanent resident worker for the position it wants to fill with a foreign national worker. To test the labor market, the employer must advertise the job and conduct a good faith recruitment to determine if there are “available and qualified” US workers to fill the position. The recruitment process must be handled according to very strict DOL guidelines that are not like what an employer would typically do to recruit a new employee.
The detailed steps involved in the PERM recruitment process include:
- Request a prevailing wage determination from the Department of Labor in DC (these wages are based on the Dept. of Labor (DOL) wage schedules). This process takes approximately 6-8 weeks.
- A job order must be placed with the state of intended employment. The state posts the job in its job bank for 30 days.
- The job must be advertised in the city’s major newspaper for two Sundays.
- The employer must choose 3 other forms of recruitment (DOL has a published a list of other alternatives including: the employer’s web site, an on-line job site, campus recruitment, radio or TV, professional journals, private recruitment companies, etc.)
- The job must be posted at the job site for 2 weeks.
- The employer will interview applicants that appear to be qualified.
- If there are qualified and available US workers, the employer has no obligation to hire any of them but the PERM application cannot be filed.
- If there are no qualified or available US workers found to fill the position, the employer will sign a recruitment report describing the recruitment process and its results.
- The employer must register on-line with the DOL for a PERM account and then set up a sub-account for its attorney.
- The attorney will electronically file the ETA 9089 with the DOL. The date the application is filed becomes the employee’s/beneficiary’s priority date.
- DOL can adjudicate the application based simply on the electronic filing or it can audit the application.
- If DOL audits the PERM application, all underlying recruitment documents (including ad tear sheets, posting notices, job orders, etc.) are submitted to the DOL.
All of the PERM preparation steps must be accomplished within 180 days. The PERM application belongs to the employer and is an attestation by the employer that it is unable to find a qualified and available US worker to fill the job. The recruitment, while it must be done in good faith, does not require that the employer actually hire anyone for the position. It is understood by all parties (except the potential applicants) that the position is already filled and that the purpose of the recruitment is only to test the labor market and prove the need for the foreign national to remain in the job permanently. If all the applicants for the job cannot be disqualified for a lawful reason, the PERM application cannot be filed.
DOL processing times for adjudicating PERM applications fluctuate without notice. Processing times can range between one month and one year for unaudited cases. About one year of processing is added for audited cases. Please check with the attorney handling your case about current processing times.
The PERM regulations prohibit an employee from paying any costs related to the PERM process, including attorney fees and advertising costs. If an employer is found to have charged back any of these costs to the employee (i.e. deduction of future wages), the employer will be “barred” from filing future PERM applications.
Once the PERM is approved, the next step is to file the Form I-140 immigrant petition with USCIS. The I-140 is the employer’s petition on the employee’s behalf to notify USCIS that it is sponsoring the employee for a green card in the EB-2 category. The I-140 must be filed within 180 days of the PERM approval. The employer is the sponsor of the I-140 and must sign the petition. An employer may pay the fees and costs associated with the I-140 but has no legal obligation to do so. Government processing times for a Form I-140 are from 4-6 months. Premium processing is available for an additional government fee, and that service shortens the processing time to 15 calendar days.
If the doctor is otherwise eligible, he or she may also file the I-485 adjustment of status application concurrently. Doctors who are in the process of fulfilling the three years of J-1 service may not file an adjustment of status application based on a PERM until they have completed the service commitment. As with the PNIW, doctors who have backlogged priority dates, such as those from India and China, may not file an adjustment of status application unless they have a current priority date. For PERM cases, the priority date is the date on which the PERM application is filed, but that date does not lock in until the I-140 is approved.
An employee may not port a PERM-based green card petition to a subsequent employer unless he or she has an adjustment of status application that has been pending for 180 days. This means that doctors with backlogged priority dates who are unable to file adjustment of status applications often may not port a PERM-based petition to a subsequent employer. Those physicians may port the priority date and ability to obtain H-1B extensions beyond the six-year limit if they have an approved I-140.
Conclusion
The requirements of the PNIW and PERM processes vary greatly from one another. It is important to consult with an experienced immigration attorney to determine which path to choose. It is also permitted to proceed down both paths at the same time, and some physicians find that doing so is the right option for them. When deciding on the appropriate green card path, it is advisable to consider who owns the petition, who pays the fees, portability and processing times, in addition to whether the physician and/or the employer will qualify for the particular path in the first place.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.