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PERM

LABOR CERTIFICATION PROCESS UNDER PERM

U.S. immigration laws provide for several employment-based immigrant visa classifications. Approximately 140,000 immigrant visas are available each fiscal year for foreign workers (and their spouses and children) who seek to immigrate based on their job skills. If the foreign national has the right combination of skills, education, and/or work experience and is otherwise eligible, s/he may be able to obtain permanent residence ("green card") status in the United States.

There are five categories of employment-based immigrant visas. Most employment based immigration categories require the foreign national must be sponsored by a U.S. employer. The process for obtaining permanent residence based on employment consists of three phases: the labor certification, the immigrant visa petition, and the application for permanent residence.

Labor Certification

The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the Department of Labor. The U.S. employer must obtain a permanent foreign labor certification from the U.S. Department of Labor (DOL) to verify the following:

  • There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage.
  • Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • A "labor certification" is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill the position held by the sponsored alien employee, and that the company is paying and will pay the employee the "prevailing wage." The labor certification is valid only as long as three things remain unchanged: the alien continues to work (1) for the same employer, (2) at the same location, and (3) doing the same job.
  • The traditional method of filing labor certifications was changed effective March 28, 2005. All foreign labor certification applications must be filed under the new PERM system (see below).

The Visa Petition

Once the labor certification application has been approved by the DOL, the U.S. employer can file an immigrant visa petition (I-140 Immigrant Visa Petition) on behalf of the foreign national. The I-140 petition is submitted to the U.S. Citizenship and Immigration Services ("USCIS") along with the approved labor certification. At this time, the employer must submit documentation establishing the company's financial ability to pay the employee's proffered wages. In addition, the foreign national employee must submit documents to verify that s/he meets all of the minimum requirements listed on the labor certification.

Application for Permanent Residence

The last and final stage of the employment based permanent residence ("green card") process is the foreign national's application for permanent residence, which can only be filed if an immigrant visa number is available in his/her preference category. The immigrant visa availability is based on the "priority date". If the foreign national is inside the United States, when the priority date is current and an immigrant visa becomes available, s/he can file for "adjustment of status" by filing a Form I-485, Application to Register or Adjust Status. If the foreign national is outside the United State, s/he an apply for an immigrant visa at a U.S. consulate abroad. This is often referred to as "consular processing".

Labor Certification Process Under Perm

PERM is an electronic system used for filing and processing labor certification applications which are required for permanent employment based immigration process. The traditional method of filing labor certification applications was re-designed by the Department of Labor (DOL) to streamline the often complex and lengthy process of obtaining labor certifications. As of March 28, 2005, all foreign labor certifications are now filed under PERM.

Some of the key features of the PERM regulations are:

  • All labor certification applications are now filed on-line/with the DOL's central processing center in Atlanta, GA.
  • There are certain "pre-filing" requirements under PERM. Before a labor certification can be filed with DOL, the employer must obtain a Prevailing Wage Determination (PWD) for the proposed position from the State Workforce Agency (SWA) in the state where the position has been offered to the prospective employee.
  • The employer must agree to pay at least 100% of the prevailing wage for the position as determined by DOL.
  • Once the PWD has been obtained, the employer must undertake a "recruitment process". The recruitment process consists of placing a job order with the SWA for 30 days. Other required recruitment includes:

(a) employer must place advertisement in two Sunday newspaper editions (for positions that require experience and an advanced degree, the employer can substitute an advertisement in a national journal or publication for one Sunday newspaper advertisement);

(b) employer must undertake at least three additional means of recruitment as alternate forms of advertising (see below).

  • The Labor Certification Application cannot be filed until thirty (30) days have passed from the last recruitment effort. The employer must submit an ETA Form 9089 with the DOL. This form can be filed electronically or by mail.
  • Under PERM, the date when the labor certification application Form ETA 9089 is submitted electronically is the priority date.
  • Notice and Worksite Posting Requirement: Employers filing a labor certification under PERM must provide notice to the bargaining representative of those employees of the employer who are in the occupational classification and area of intended employment for which the labor certification is sought. If there is not a bargaining representative, the employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive business days.
  • Recruitment Report: Once the recruitment process is complete, the employer must prepare a "Recruitment Report" that describes the recruitment steps undertaken and explains the specific job related reasons for rejecting U.S. workers (if any). The report must contain information about the number of persons interviewed and/or hired, the number of U.S. workers rejected, and the lawful job related reasons for such rejections.
  • Layoffs: If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid off U.S. workers.
  • Employer Attestations: The employer must certify the conditions of employment under penalty of perjury. The conditions to be certified include matters pertaining to the prevailing wage. These certifications include:
  • That the offered wage equals or exceeds the prevailing wage;
  • That the wage the employer will pay to the foreign national will equal or exceed the prevailing wage that is applicable at the time that the foreign national begins work or is admitted to take up the certified employment;
  • That the wage offered is not based on non-guaranteed commissions, bonuses, or other incentives;
  • That the employer has sufficient funds to pay the offered wage; and that the employer will be able to place the foreign national on the payroll on or before the foreign national's proposed entry to the U.S

Required Recruitment under PERM:

The employer who wishes to file a labor certification application in most cases must complete the following recruitment steps:-

  • After obtaining the PWD from the SWA, the employer must submit a job order to the SWA in the area of intended employment for 30 days.
  • The employer must also run two Sunday advertisements in a newspaper of general circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal.

These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification.

Additional Recruitment for Professional Positions

If the position being offered is one that is "professional" in nature, then the employer must undertake some additional "real world" recruitment efforts. If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the 10 following recruitment efforts:

  • Recruitment at job fairs;
  • Recruitment on the employer's website;
  • Job search website other than the employer's site;
  • On-campus recruiting;
  • Use of trade or professional organizations for recruitment;
  • Use of private employment firms;
  • Employee referral program with incentives;
  • Use of campus placement offices;
  • Use of local and ethnic newspapers;
  • Or use of radio and television advertisements.

Only one of these efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application.

Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list (as maintained by the DOL). Examples of occupations on the current professional occupations list include: computer and information scientists, research; computer and information systems managers; accountants; computer programmers; computers software engineers; computer systems analysts; database administrators; network and computer system administrators; computer security specialists; network systems and data communication analysts; biomedical engineers; computer hardware engineers; electrical engineers; occupational therapists; sales engineers; and lawyers.

AUDIT OF LABOR CERTIFICATIONS FILED UNDER PERM

The PERM process requires that the employer complete the recruitment steps prior to filing the application but it does not require that supporting documentation including copies of advertisements, internal postings and recruitment reports be filed with the petition. Under PERM regulations, the DOL will conduct random (or discretionary) audits to ensure that the employer has completed all "pre-filing" requirements and undertaken all the recruitment steps as required and to verify that there were no "available and qualified U.S. workers". The employer must respond to an audit request within 30 days (unless an extension is granted by DOL).

Employer must retain all documentation for 5 years

Under PERM regulations, employers must keep all records related to each labor certification application for five years. This documentation includes all documents related to the PWD, internal notices, documentation of recruitment efforts, recruitment report, and a copy of the ETA 9089.

For more information, please contact us at 215-368-8600 or ak@akaimmigration.com

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