U.S. Immigration & Nationality Law Practice | Immigration Lawyer in Philadelphia
EMPLOYMENT/BUSINESS IMMIGRATION, NONIMMIGRANT WORK VISAS
Employment Based "Greencard" Process - PERM
H-1B "SPECIALTY OCCUPATION' NONIMMIGRANT WORK VISA
H-1B "SPECIALTY OCCUPATION' NONIMMIGRANT WORK VISA
FOREIGN 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.
I-140 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 eemployer 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
H-1B "SPECIALTY OCCUPATION' NONIMMIGRANT WORK VISA
H-1B "SPECIALTY OCCUPATION' NONIMMIGRANT WORK VISA
H-1B "SPECIALTY OCCUPATION' NONIMMIGRANT WORK VISA
H-1B "SPECIALTY OCCUPATION" NONIMMIGRANT VISA
The H-1B nonimmigrant visa category applies to foreign workers coming temporarily to the U.S. to perform services in a "Specialty Occupation". A specialty occupation requires the theoretical and practical application of a body of specialized knowledge AND a bachelor's degree or the equivalent in the specific specialty (e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care etc.) The person being sponsored must meet this standard. To hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. Thus, there are two requirements:
- The employer must demonstrate a need for someone in a specialty occupation as the minimum capability to perform the job; and
- The foreign national must have the required degree, or its equivalent, in a subject closely related to the position.
Under the provisions of the immigration law, the need for a person in a specialty occupation can be shown by one of the following:
- A bachelor's or higher degree is normally the minimum requirement for entry into the particular position;
- The degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires the degree for the position; or
- The nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.
An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), usually for three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. The law was recently amended and now certain foreign workers with labor certification applications or immigrant visa petitions pending for extended periods may stay in H-1B status beyond the six-year limitation, in one-year increments.
Employer's Responsibilities as required by the Department of Labor:
An employer who wishes to hire a foreign worker in H-1B status is required to file a Labor Condition Application ("LCA") with the U.S. Department of Labor (DOL). Once the LCA is certified (approved), the employer then submits the H-1B petition to the US Citizenship and Immigration Services (USCIS). Please note that an approval of the LCA by the DOL is a preliminary step and does not guarantee an H-1B approval and visa issuance. An employer seeking to hire an H-1B worker must take the following actions prior to filing the H-1B petition:
- The employer must first file a LCA with the DOL specifying the region where the H-1B employee will work.
- The employer must attest to certain wage and working conditions.
- The employer must give notice of the LCA to the relevant collective bargaining unit, if the job is unionized, or otherwise post a notice in a conspicuous location to enable other employees to see it.
- The employer must pay certain costs and expenses on behalf of an H-1B employee.
- The employer must also keep certain records.
Under the DOL regulations, by completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B nonimmigrant; these attestations are specifically identified and incorporated by reference in the LCA and are listed as follows:
1. That for the entire period of authorized employment (typically, three years), the company will pay all H-1B worker(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
- The actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question; or
- The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position.
The Required Wage Rate Determination: The U.S. employer must pay the H-1B professional "the required wage rate" and provide the professional with comparable working conditions and an equivalent benefits package applicable to U.S. workers. The required wage rate is the higher of the "actual wage rate" and the "prevailing wage rate." The "actual wage rate" is the wage rate, which the U.S. Company pays to its other employees who are similarly qualified to the
H-1B worker and who are employed in the same occupation at the same work site. The "prevailing wage rate" is a measure of the mean income for a particular specialty occupation in a specific Metropolitan Statistical Area, which is determined by a survey.
We routinely obtain prevailing wage determinations through the OES wage data, which is recognized by the DOL as acceptable and meets the DOL guidelines. A wage survey from an alternative source can be used if it meets the criteria as required under DOL regulations.
2. That for the entire period of authorized employment, the employment of the H-1B foreign worker will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer's establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.
Public Access File: As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Some of that documentation must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation. LCA materials should be kept separately from other employment records.
Documentation, which must be made available for public inspection, should be kept in its own file and separately from other documentation required for LCA purposes as well as from the personnel information regarding the specific H-1B worker. This documentation must be retained for one year beyond the end of the period of employment specified on the LCA. We will send you information on how to prepare a "Public Access File" required to be maintained by the employer.
BASIC OUTLINE OF THE H-1B PROCESS
Once the LCA has been certified, we will complete and file the H-1B petition with the USCIS. After the LCA is approved by the DOL, the next step is to submit the H-1B petition to the US Citizenship and Immigration Services ("USCIS) along with the approved LCA, and a letter from the employer in support of the petition, which describes the operations of the company, the job opening, and the prospective employee's background. The H-1B petition, along with the filing fee, certified LCA, and supporting documentation, is filed with the USCIS Regional Service Center, which has jurisdiction over the proposed work location.
CHANGE OF EMPLOYER AND H-1B PORTABILITY:
Ability to start work upon filing the new H-1B petition: Previously, an H-1B beneficiary could not work for the new employer until the new H-1B petition filed on his or her behalf was approved. Under the new law passed on October 17, 2000, a person who is presently working with another employer in H-1B status is now allowed to accept new employment and start working for the new employer after filing the new H-1B petition as long as the person satisfies the following criteria:
- The person is presently in H-1B status,
- The person has been lawfully admitted into the U.S.;
- The employer has filed a non-frivolous H-1B or other non-immigrant petition for new employment, which is currently pending with the USCIS; and
- The person has never been employed without authorization in the U.S. before the filing of the H-1B petition.
Once the new H-1B petition for "change of employer" has been filed with USCIS, the beneficiary can start working for the new employer upon receipt of the USCIS Receipt Notice. However, if the H-1B petition is denied, the person can no longer work for the petitioning employer.
Approval of H-1B Petition
The time that it takes for the USCIS to adjudicate the H-1B petition varies considerably, and also depends upon which service center the H-1B petition has been submitted. It may take anywhere from approximately several weeks to several months to receive an answer from the USCIS. Presently, the processing time for H-1B petitions is about 90-120 days. If "premium processing" is requested, USCIS will process the H-1B petition within 15 calendar days.
H-1B Visa: Once the H-1B petition is approved, the USCIS sends an Approval Notice of Action if it approves the H-1B petition. The foreign worker who is outside of the U.S. must apply for the H-1B visa stamp at a U.S. consulate in his/her home country and then enter the U.S. to be employed in H-1B status. If the H-1B worker is already present in the U.S. in valid status, then the person may begin work immediately after receiving the approval notice. If the foreign worker is already in the U.S. in valid status when receiving the approval notice, s/he will need to go to a U.S. consulate to obtain a visa stamp to re-enter the U.S., next time s/he travels outside the U.S.
BENCHING RULE
If an H-1B employee is "benched" due to the employer's business reasons (such as lack of available work), then s/he must still be paid for the full hours specified on the H-1B petition and LCA. If an employee is absent based on issues not work related, such as personal or health reasons, then the above provision does not apply.
H-4 STATUS FOR DEPENDENTS
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to apply for H-4 nonimmigrant status. This application can be filed concurrently with the H-1B petition for the foreign worker, or after the H-1B petition for the principal has been approved. Please note that dependents in H-4 status may not be employed under the H-4 classification.
For more information, please contact us at 215-368-8600 or ak@akaimmigration.com