Before filing an I-140 petition for an employee beneficiary, petitioning employers brave a seemingly endless obstacle course, spending several months filing a prevailing wage determination (“PWD”) application, complying with a tedious recruitment process, and finally, awaiting certification of the PERM (ETA 9089). Once the PERM is certified, the petitioner can finally petition for the permanent residency of a beneficiary.
After the certified PERM, the most important evidence supporting an I-140 petition is documentation showing that the beneficiary meets all requirements described in the PERM. While proving education requirements is usually straightforward, the same may not be true when proving previous employment/experience. Although many workers obtain employment verification documents as a matter of course when moving from one job to the next, these letters often do not satisfy federal regulations governing the adjudication of I-140 petitions.
Still, if petitioners plan ahead of time—as early as the initiation phase of a PERM case—they can save themselves the headache (and cost) of responding to a Request for Evidence (“RFE”) that questions whether the employee qualifies for the position identified in the PERM form. Here are some basic questions petitioners should consider to avoid these unnecessary RFEs:
Who can write an employment verification letter?
A former supervisor, manager, or HR representative from the beneficiary’s previous employer should sign the letter. If the petitioner currently employs the beneficiary, the beneficiary typically must have gained the employment experience before beginning work with the petitioner.
What should the employment verification letter say?
An employment verification letter should:
- Appear on company letterhead
- List the name, address, and title of the writer
- Give the beneficiary’s precise dates of employment (i.e., month, day, and year for the beneficiary’s first and last date of employment)
- Include the beneficiary’s job title and a specific description of the duties performed during employment
If applicable, the letter should also confirm any skills required for the position.
What if the beneficiary cannot provide an employment verification letter that meets the above requirements?
Sometimes, former employers refuse to provide detailed employment verification letters due to internal company policies. In that case, the beneficiary will need to inquire what the former employer is willing to provide. While USCIS may disregard a letter lacking any of the requirements listed above, some petitioners have successfully provided letters that contain most, but not all, of the above requirements.
If it is impossible to obtain an employment verification letter meeting all of the regulatory requirements, a petitioner should ask the beneficiary to provide alternate evidence. The following are suggested alternatives to overcome common issues:
- Where a previous employer refuses to provide a detailed employment verification letter, a beneficiary may try to obtain a similar letter or affidavit signed by a coworker. (USCIS is more likely to accept this alternate evidence if the beneficiary provides letters from more than one coworker.)
- Where a previous supervisor has moved to a different company, the beneficiary may try to obtain a similar letter from the former supervisor on letterhead from their current company. (The letter should also give details about the former supervisor’s affiliation with the former employer.)
- Where a previous employing entity is now defunct, a beneficiary may try to obtain a letter from a former coworker or supervisor that explains the status of the previous entity.
- Where a beneficiary was self-employed, the beneficiary should gather documentation confirming the duration and scope of work. (This could include financial statements, service agreements, business formation documents, letters from former customers, etc.)
See 8 CFR § 204.5(g).
Please note that while some employers have had success using the alternatives described above in support of I-140 petitions, USCIS is not required to accept alternative evidence. Simply put, if a PERM form requires employment experience, then the I-140 petition should provide an employment verification letter as contemplated in the regulations.
To ensure smooth preparation and adjudication of I-140 petitions subject to PERM, employers should have a candid conversation with their attorney and beneficiary at the earliest stages of the PERM process to ensure that the beneficiary will be able to provide all necessary evidence when it is time to file the I-140 petition.
ABOUT THE AUTHOR
Alexandra Crandall is an attorney at Dickinson Wright in Phoenix. She practices business immigration, successfully assisting employers with the preparation of immigrant and non-immigrant petitions to maintain their foreign national workforce. Prior to joining the firm, Ms. Crandall served as a Judicial Law Clerk to the Honorable Jennifer B. Campbell at the Arizona Court of Appeals. She can be reached at 602-285-5074 or firstname.lastname@example.org. Her bio can be accessed here.