Chapter 15 Obtaining Permanent Residence Through PERM Labor Certification

• Jurisdiction: United States

There are several paths that physicians can travel to obtain permanent residence. The most popular is the traditional permanent labor certification route in the EB-2 category. Also known as Program Electronic Review Management System (PERM), this process is complex and time consuming. In essence, it involves convincing the U.S. Department of Labor (DOL) to certify that for the position the physician seeks to fill, there are insufficient U.S. workers in the local geographic area who are able, willing, qualified, and available for the job, and that the employment of a foreign national will not adversely impact wages and working conditions of similarly employed U.S. workers.

In con-trast, the EB-1 “ex-traor-dinary abil-ity” cate-gory re-quires a physi-cian demonstrate that he or she has sus-tained na-tional or inter-na-tional ac-claim, something that is not easy for most to doc-ument.

PERM requires the employer to go through an extensive test recruiting process. After that, an employer can file an immigrant petition with U.S. Citizenship and Immigration Services (USCIS) that requires the employer to show that the immigrant physician meets the requirements laid out in the PERM application and that the employer has the ability to pay the physician.

Despite the difficulties inherent in the PERM process, this strategy has a few key attractions for physicians. First, given the persistent physician shortage in the United States, the odds of a qualified and readily available American doctor responding to the test recruiting are fairly low. So the approval rate in the category is high. Second, a PERM-based application is available for almost any type of position and any type of doctor.

Physician National Interest Waivers (PNIW) (described in detail in Chapter 16) require the position be in a U.S. Department of Health and Human Services (HHS)–designated shortage area and be supported by an interested government agency. Many states place restrictions on the types of doctors who apply. For example, some states will sponsor PNIWs only for doctors who already have been sponsored by that state for J-1 waivers.

There are disadvantages to the PERM process. First, the process usually takes longer to file than a PNIW case, for example, because the PERM process must be completed before the Form I-140, Immigrant Petition for Alien Worker, can be filed. This can make a difference of several extra months. Also, PERM cases for physicians are in the EB-2 category, which for many years has been backlogged for Indian and Chinese doctors.

Finally, DOL mandates that employers sponsor and pay all costs associated with the PERM application. This may make the process more challenging for some physicians. Some employers may not want to pay the costs or will want the physician to commit to a longer contract in exchange for sponsorship. Physicians may have less of a say in the decision-making—including what attorney to choose—when the employer pays the costs.

Once the PERM application is approved, the employer must file a Form I-140 immigrant visa application within 180 days. The I-140 process in a PERM-based petition focuses on documenting that the position remains open to the physician beneficiary, that the physician possesses the qualifications stated in the approved PERM application and that the employer has the ability to pay the salary stated in the PERM application. USCIS typically processes Form I-140s based on an approved PERM labor certification within six to eight months of filing (or within 15 days if premium processing is selected).

Adjustment of status applications for physicians in the United States can be filed concurrently with the Form I-140 if the physician is not from a country that is backlogged in the EB-2 category. As of January 2017, there were no country backlogs except for India and China. Otherwise, the adjustment application cannot be filed until a priority date is current.

Physicians who are complying with a three-year service commitment pursuant to a J-1 waiver must wait until they complete the three years of service and a priority date is current to file an adjustment-of-status application. Applicants pursuing consular processing of a green card at a U.S. consulate abroad must wait until the Form I-140 is approved and USCIS has communicated approval to the Department of State.

What are the steps in the PERM process?

PERM is about demonstrating that there are no “available and qualified” U.S. workers to fill a would-be immigrant’s position. This means there are no U.S. citizens and/or permanent resident workers who can perform the job duties and who can start the job right away if offered the job.

Before beginning the process, the employer must identify the various job requirements and duties for the physician’s position. DOL regulations require that an employer demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

The requirements and job duties identified will be used in the recruiting process and an employer cannot later say that a candidate is not qualified if the employer failed to list a particular requirement that a candidate lacks, or if the candidate is incapable of performing an important job duty that was not earlier noted. Certainly, a medical degree and a medical license (or license eligibility) would be acceptable.

There has been confusion and debate over the years regarding where to include residency and fellowship training in the PERM application process. Some immigration lawyers simply note that a physician needs to be “board certified” or “board eligible” (BC/BE), which would necessarily include graduate medical training. Being BC/BE is a normal requirement of many physician employers, so this requirement is fairly common.

But note that if the employer includes the BC/BE requirement and the PERM process is begun while a physician is still in graduate medical training while not yet board eligible, the application will be denied.

For a professional position like a physician, within 180 days preceding the filing of the PERM petition, the following steps must be taken:

1. The employer requests a prevailing wage determination from DOL. This is the wage DOL believes is the appropriate wage for the position based on the level of the position and the particular geographic area. For physicians, if the DOL has not surveyed a particular medical specialty or it does not have local data, it may provide a default national wage. As of the writing of this book, that wage was $100 per hour ($208,000 per year). The PERM regulations do not give DOL a deadline in which to issue a prevailing wage determination. DOL takes anywhere from two to four months to issue the prevailing wage determination, though processing can be longer when DOL’s resources are stretched.

2. A job order must be placed with DOL in the state where the doctor will be working. The state’s labor department will post the position in its job bank for 30 days.

3. The physician position must be advertised in the city’s major newspaper for two Sundays. If the job is located in a rural area without a newspaper publishing a Sunday edition (not rare for physicians working in underserved communities), the employer may use the newspaper with the widest

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