Drafting PERM Applications for I-140 Approval
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While the obstacles of the PERM process can make an approval seem like an achievement, it is important to remember that PERM approval is not the ultimate goal. If the labor certification application is not drafted correctly, the I-140 may not be approved. Skillful immigration lawyers are ones who not only focus on the approval of the PERM application itself but ones who also make certain that the PERM application also leads to approval of the subsequent I-140 petition. While PERM approval is obviously desirable, foreign nationals must understand that I-140 denials after PERM approvals are a real possibility. It is therefore critical that your lawyer drafts the PERM application with the I-140 petition in mind.
If your I-140 petition was denied due to poor drafting of the PERM application because of a three-year educational credential or otherwise, the experienced immigration lawyers at The Law Firm of Shihab & Associates can help. Our competent immigration lawyers have processed numerous complex PERM cases to approval.
Understanding PERM Applications and the I-140
The preparation for the labor certification Form 9089 must be done with the goal of not only obtaining its approval but also gaining approval for the I-140. To an employer, these two processes may appear to be similar, subsequent steps, but it must be understood that these steps deal with different agencies, and therefore have different approval requirements.
The labor certification application is approved through the Department of Labor (DOL) and this is often done with no review of supporting documentation. The U.S. Citizenship and Immigration Services (USCIS), on the other hand, is charged with assuring that a foreign national’s qualifications meet the employer’s requirements. Documentation submitted to the USCIS will be closely reviewed, so merely showing the DOL approval is insufficient for the I-140. The documentation may include the employer’s education requirements, experience requirements, and specific skills or other requirements. It is recommended that this information is obtained as early as possible to avoid delays, even if the information is not yet necessary.
The employer establishes a minimum education requirement for the position offered, but this requirement should be expressed on the ETA 9089 in consideration of the foreign national’s available documentation. Documentation to prove education usually consists of diplomas and transcripts. These can normally be photocopies, but occasionally the USCIS will want to review original diplomas and official transcripts. Foreign school records should be accompanied by translations certified as “true and complete” or “true and correct.” Foreign degrees may not be equivalent to a U.S. degree, so proper wording must be used to clearly state how the foreign national’s degree applies to directly to the stated requirements.
Experience can be documented through letters from previous employers or supervisors. These letters should include the name, address, and title of the writer along with a specific description of the foreign national’s job duties or training. The writer should have direct knowledge of the work experience or access to employment records where periods of employment can be verified. More details may be required when an employment letter is being submitted to qualify the foreign national’s specific skills. The specific skills letters should be obtained early in an effort to use the correct terminology and ensure consistency between the Form 9089 and the I-140.
In a situation where a letter from the employer is unavailable, the USCIS typically accepts letters from supervisors. It becomes more difficult if the foreign national has only former coworkers or a self-declaration describing his or her detailed work experience in addition to the reason why a verification letter could not be obtained. Any additional evidence such as pay stubs or tax forms is helpful, but it remains up to the discretion of the USCIS.
EB-2 & EB-3 Cases
When dealing with EB-2 and EB-3 cases, the USCIS looks at the job duties and requirements to determine if the foreign national is qualified as a professional. To be considered a professional under EB-2, the foreign national must be a member of the profession holding an advanced degree (master’s degree or equivalent). Under EB-3, he or she must be a member of the professions holding a bachelor’s degree or foreign degree equivalent or a skilled worker. A profession can be defined as one of the occupations listed in the Immigration and Nationality Act or any occupation that requires a minimum of a bachelor’s degree.
There are some occupations that are not clearly established as professional occupations. In these cases, it is imperative that the Form 9089 job duties and job requirements are drafted to show that they are professional positions. This increases the importance of the job title as well since the job title can reinforce the concept that it is identifying a professional occupation. Neither the job title nor the job duties should be described in an ambiguous way since ambiguous language is determined at the discretion of the agencies. The professional occupation’s title should be used and can be clarified with a parenthetical explanation such as “internally referred to as –insert internal title—” to eliminate inconsistencies or questions about the position being professional.
Finally, it is important that the employer be able to show its ability to pay the prevailing wage from the time the PERM application is filed until the foreign national obtains lawful permanent resident status. If the employer is currently paying that wage, pay stubs or tax documents can be good evidence of the ability to pay. Some other methods might include a review of the employer’s accounts receivable, employer’s bank accounts, or in a sole proprietorship, the assets of the sole proprietor or general partners.
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The Law Firm of Shihab & Associates is eager to assist you with your PERM application. We strive to answer our clients’ questions and address their concerns every step of the way. Our Columbus immigration attorneys have decades of combined experience, so you can count on us.
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