U.S. Immigration & Nationality Law Practice | Immigration Lawyer in Philadelphia
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.
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:
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:
(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).
Required Recruitment under PERM:
The employer who wishes to file a labor certification application in most cases must complete the following recruitment steps:
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:
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.
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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:
Under the provisions of the immigration law, the need for a person in a specialty occupation can be shown by one of the following:
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:
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 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:
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.
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 email@example.com
Akanksha Kalra, Attorney at Law
Office locations: Philadelphia: 1420 Walnut Street, Suite 1188, Philadelphia, PA 19102 Norristown: 411 Cherry Street, Norristown, PA 19401