Congress has mandated that employers employing certain foreign nationals obtain a labor certification from the Department of Labor before they may hire them to work on a permanent basis, or before proceeding to sponsor them as an immigrant worker. A labor certification is granted when an employer has shown "that there are insufficient qualified U.S. workers available and willing to perform the work at the prevailing wage paid for the occupation." The intent of the Labor Certification and PERM process is to ensure that admitting foreign workers does not adversely affect job opportunities, wages and working conditions for Americans.
II. WHAT IS PERM?
The PERM process, the acronym for "Program Electronic Review Management," is a series of steps that an employer must follow to prove that no US citizen worker is available to fill the position and that wages will not be driven down by hiring foreign workers for less compensation than what would be demanded by a U.S. citizen. Whether the process accomplishes this goal or not is a matter of debate. What is important to note is that foreign nationals who wish to obtain a green card through their employer under the EB-2 or EB-3 category must comply with the extensive PERM regulations. These steps include a recruitment campaign whereby the employer advertises the opening of the position to persons in the area of employment. The process also involves establishing with the state and federal government that the employer will pay the prevailing wage for the location in that particular occupational field to the foreign national.
Once these steps are completed, the labor certification application may be filed with the US Department of Labor. Occasionally, the department of labor will audit the labor certification application to inquire if all of the PERM steps had been followed. Once the labor certification application has been approved by the Department of Labor, the employer is given a limited amount of time to file the Form I-140, and thereby for the alien's Green Card with the United States Citizenship and Immigration Service.
III. REQUIREMENTS OF THE EMPLOYER IN THE PERM PROCESS
The employer must make certain attestations and make certain information available when submitting a labor certification application. The employer must be willing to pay the foreign national the prevailing wage for the area. The employer must put forth a good faith recruitment campaign that does not tailor the position requirements such that only the intended foreign national could possibly qualify for the opening. The position offered must be full time and the job duties must be normal to the occupation. The attorneys of The Law Firm of Shihab & Associates are available to guide employers through the complicated PERM process.
1. Information that must be provided for the PERM Labor Certification Application
The labor certification application consists of information on the employer, information on the foreign national, and information on the employment position that the foreign national hopes to fill.
Most importantly, the employer may need to provide proof that the PERM process has been accurately complied with. This means that meticulous records must be kept of every step that the employer takes in the recruitment campaign. The employer will also need to provide biographical information of the company itself and its ability to actually pay the foreign worker the prevailing wage.
The foreign national will need to provide detailed information on his or her education and previous work experience. The foreign national may also need to provide letters from previous employers detailing the dates that the person worked for that company, the person's exact job title, and the duties performed.
Finally, the PERM Labor Certification must include details about the job itself. A position description and job duties must be clearly laid out. The working conditions and requirements must be thoroughly documented. Additionally, the compensation provided, including benefits, must be disclosed.
The Attorneys of The Law Firm of Shihab & Associates Co., LPA realize that the Labor Certification process may require employers to furnish proof that they have complied with the rigorous regulatory PERM directives and actively represent their clients making certain that compliance is maintained. Our years of experience have given us the forethought and insight to accomplish these goals while protecting clients' privacy.
2. The PERM Recruitment process
In order for the employer to show that there are no US Citizen workers available, willing, and qualified to perform the work, the Employer must undertake a series of recruitment efforts. The recruitment requirements are divided between mandatory and optional depending on the classification of the position as "professional" or not. All positions require the mandatory recruitment steps.
A) Mandatory recruitment efforts include:
- Opening a 30 Day job order with the state workforce office
- Posting a notice of intent to employ a foreign worker internally or with the Union covering the position
- Placing 2 Sunday newspaper advertisements with the newspaper of general circulation for the area of intended employment
These recruitment efforts must be completed thirty (30) days prior to filing the labor certification application. Additionally, the 30 Day job order must have been begun (60) days before filing the labor certification application
B) Additional Recruitment
If the position is considered to be a professional position under Department Of Labor (DOL) regulations, then three (3) of the following ten (10) recruitment efforts must be undertaken:
- Job fairs
- Employer's Web site
- Job search Web site other than the employer's
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertisements
Two of the three additional recruitment steps must have been completed thirty days (30 days) prior to filing the labor certification application with the DOL.
3. The DOL Audit
A DOL audit is a normal, albeit not entirely pleasant occurrence. Because the Labor Certification Application is filed alone, without supporting documentation, the Department of Labor relies on the possibility of audits to ensure that employers have followed the PERM regulations. The Department of Labor currently audits up to 37% of Labor Certification Applications per year. Additionally, the DOL may audit a petition to inquire about case specific aspects of an application. Finally, The DOL may audit up to five years after a labor certification is approved. It is for this reason that meticulous records must be kept regarding every step in the PERM process and stored in an audit file immediately after filing the Labor Certification Application.
A) The Business Necessity Letter
If the employer has asked for more skills or qualifications from potential applicants than what the DOL considers to be normal to the occupation, then the DOL may ask for a business necessity letter during the PERM audit process proving the need for a person of such high qualifications. A carefully drafted business necessity letter must be documented in order to prove the reasons why the employer simply must have someone with more experience, skill or education than what the DOL considers to be normal for the job.
4. Filing the Labor Certification Application
The Department of Labor has established a system of on-line filing. The employer must file the Labor Certification application. Paper filing is permitted but not encouraged.
5. Waiting for Certification
Currently, DOL is taking six months or longer to process a labor certification application.
6. DOL Denial of a Labor Certification Application
If a labor certification is denied, an employer may re-file immediately. Unlike the prior labor certification system which preceded the enactment of PERM, there is no waiting time after denial to file a new PERM case. In the alternative, the employer may file an appeal of the denial to the Board of Alien Labor Certification Appeals ("BALCA").
7. After the Labor Certification is Approved
Following the approval of the labor certification, the DOL will send the labor certification document to the attorney. This document must be signed by the employer, employee and attorney. The attorney will then prepare the I-140 petition documentation. After assembling the necessary documentation, the attorney will send the I-140 petition to the USCIS. Finally, the foreign national's priority date will become current and the I-485 will be submitted to change the applicant's status to that of Legal Permanent Resident.
8. The Priority Date
For employment based immigrant petitions under the EB-2 or EB-3 visa category, the priority date is the date which the Department of Labor receives and accepts the Labor Certification Application for processing. This date is important because foreign nationals under the EB-2 and EB-3 categories must wait until their priority date is current in order to file for a change of status from their current immigrant status to that of legal Permanent Resident. The Department of State updates the visa bulletin with the priority date for all EB-2 and EB-3 petitions every month.
How to Contact Us
If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.
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- Drafting PERM Applications for I-140 Approval
- Overview of The PERM Process
- PERM or Department of Labor (DOL) Audits
- Proving Employer Successor in Interest after Filing I-140 Petition
- Employer Must Show Ability to Pay When Filing I-140 Petition
- EB-2 vs. EB-3
- I-140 Portability, I-485 Concurrent Filing, H-1B Extensions
- Court Upholds PERM Certification Despite CO Denial Citing Recruitment Violation
- BALCA Decision regarding PERM Notice of Filing Posting Dates
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- BALCA Decides Whether PERM Advertising Must Disclose Working at Home
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