Pursuant to the Immigration and Nationality Act (INA), the entry of foreign workers into the United States for permanent residence is regulated. Aliens seeking to live and work permanently in the United States must obtain a "green card." Competition for green cards is great, particularly since most aliens wishing to become United States citizens must live and work in the United States pursuant to a green card before becoming eligible for citizenship.

Preference System

The INA grants employment-based preferences to certain types of employees. At the top of the priority list are:

• Aliens with extraordinary ability in the sciences, arts, education, business, or athletics
• Outstanding professors and researchers
• Multinational executives and managers

Behind these priority workers are other types of workers who receive preferential treatment, namely:

• Aliens who are members of the professions holding advanced degrees
• Aliens of exceptional ability in the arts, sciences, or business
• Skilled and other workers in short supply and professionals who only hold bachelor's degrees

Department of Labor Certification Requirement

Before employers may bring workers falling in the secondary priority categories into the United States for permanent work, the employer must submit an immigration petition to the United States Citizenship and Immigration Service. Such an application must include a certification from the Department of Labor stating that there are no qualified American workers who are available and willing to accept the job at the prevailing wage for that occupation in the area of intended employment.

Applications for certification are processed by the Department of Labor, in conjunction with the applicable state workforce agency (SWA). To qualify for standard certification, the following must generally be shown:

• The employer must be hiring the alien on a full-time basis
• The employer must have a bona fide job opening
• The job description must not be tailored to the worker's qualifications, but must include those skills customarily required for the job in the United States
• That the job opportunity has been and is being described without unduly restrictive job requirements, unless such requirements are justified by business necessity
• The employer must pay at least the prevailing wage

The traditional certification process is cumbersome and may take up to four years. Both the SWA and the DOL are heavily involved in the procedure. An expedited process, known as a reduction in recruitment (RIR) process, may also be requested by employers. Under the expedited process, employers are required to extensively document their failed recruiting efforts. The SWA involvement is lessened, and the processing time is dramatically reduced.

Because the current system is very backlogged, the DOL has proposed implementing a Program Electronic Review Management (PERM) process Under a PERM process, employers would be required to attest to certain facts in conjunction with their certification applications. The DOL would then have the option of immediately approving the application or of conducting an audit.

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