LABOR CERTIFICATION
(PERM)
by: Gary Chodorow
revised: 18 Aug.
2007
Overview
One method to
file for
permanent
residence
through
employment is a
labor
certification
filed by the
employer. A
labor
certification is
based on the
concept that
there are no
U.S. workers
willing or able
to perform a
certain job and
is intended to
assure the
U.S.
Department of
Labor (DOL) that
the company has
not offered
wages or working
conditions to a
foreign national
that adversely
affect the wages
or working
conditions of
U.S. workers.
An approved
labor
certification
serves as the
foundation for
filing an
employment-based
petition for
permanent
residence on
behalf of a
foreign
national.
For labor
certification
purposes, the
job market must
be tested
through various
advertisements
(discussed in
more detail
below), and any
U.S. worker who
applies for the
job and meets
the stated
minimum
requirements is
considered
qualified. This
rule is the
principal
distinction
between the
labor
certification
procedure and
the normal
hiring practices
of most
employers, who
seek the most
qualified
candidate for
the job, not
just one who
meets the
minimum
requirements.
As a result of
this rule, it is
very important
to accurately
define what the
minimum
requirements are
for the job in
very specific
terms.
The Labor
Certification
Procedure: PERM
A
new
attestation-based
labor
certification
program known as
PERM took effect
on March 28,
2005. Under the
PERM program,
the employer
files a labor
certification
application
electronically
with the U.S.
Department of
Labor’s
Employment and
Training
Administration
by means of ETA
Form 9089. The
form indicates,
among other
things, the
description of
the job to be
certified, the
salary, the
minimum
requirements of
the job, and the
qualifications
of the employee.
The filing also
requires the
employer to
attest that the
company has not
laid off anyone
in the
geographic area
of intended
employment in
this or a
related
occupation in
the six months
immediately
preceding the
filing. The
date of the
filing of the
application is
called the
"priority
date."
At the start of
the PERM
process, as soon
as the job
description and
requirements
have been
finalized, a
prevailing wage
determination
must be obtained
from the State
Workforce Agency
(SWA) in the
state in which
the position is
located.
To arrive at a
prevailing wage,
the SWA will
first assign an
occupational
classification
derived from the
position’s
duties and
requirements,
and will
thereafter
assign one of
four skill
levels that will
lead to the
designation of a
specific
figure. The
employer must
then agree to
pay the employee
at least the
determined
prevailing wage
for the position
at the time
the employee
is granted
permanent
residence. The
employer will be
required to show
that they have
the ability to
pay the employee
the proffered
wage at the
time of filing
the PERM
application.
Generally, for a
privately held
company, this
requires the
employer to show
a profit on the
IRS 1040 that
exceeds the
salary offered.
As noted above,
DOL requires
employers
seeking to hire
foreign-born
professionals to
test the labor
market in order
to ascertain
that there are
no qualified and
willing U.S
workers for the
position. To
this end, the
PERM regulations
require
substantial
recruitment
efforts on the
part of the
employer,
including the
following:
-
Two (2)
classified
advertisements
in a Sunday
newspaper of
general
circulation
in the area
of
employment
(one of the
newspaper
ads can be
replaced
with a
journal ad
for jobs
that require
advanced
degrees).
-
A job
order,
placed with
the State
Workforce
Agency in
the state
where the
position is
located;
this job
order will
be posted on
line for 30
days.
-
Three (3)
supplemental
recruitment
tools from
the
following 10
options: Job
fair;
Campus
recruiting;
Private
employment
firm;
Employer
website;
Job
search
website
other than
the
employer's;
Professional
or trade
association
newsletter
or journal;
Employee
referral
program with
incentives;
Notice of
job opening
in campus
recruitment
office (only
for jobs
requiring no
experience);
Local
or ethnic
newspapers
(if
appropriate);
Radio
and/or
television
advertising.
All
advertisements must
be placed within 180
days of filing the
PERM application,
and only one form of
supplemental
advertising can run
during the 30 days
leading up to the
filing.
The
employer must also
post a notice of the
labor certification
filing, including
title, job duties,
minimum requirements
and salary or salary
range, in a
conspicuous location
at the work site for
10 business days.
If
there are applicants
for the position as
a result of the
advertisements, they
must be evaluated to
see if they meet the
minimum requirements
necessary for the
position, as stated
on the PERM
application. If it
appears from a
resume that an
applicant is or may
be qualified, the
applicant must be
interviewed, at
least by telephone.
If an applicant
meets all of the
qualifications and
passes the reference
checks, the employer
does not have to
hire the individual,
but we would not be
able to file the
PERM application on
the employee’s
behalf.
Assuming there are
no qualified
applicants, once the
advertising is
complete, a letter
summarizing the
recruitment must be
drafted and a PERM
file created to
document recruitment
and other relevant
aspects of the case
(e.g. the prevailing
wage determination,
a signed copy of the
labor certification
form, evidence that
the foreign national
qualifies for the
position). This
documentation would
need to be presented
in case of an audit
of the application
by the Department of
Labor, and also must
be maintained by the
employer for five
years from the date
of filing.
Thereafter, the
labor certification
can be filed
electronically with
DOL.
The
Department of Labor
states that it will
generally process cases within
45-60 days of
filing. Once DOL
reaches the case for
processing, they
will either issue an
approval, a denial,
or an audit on the
case (whereby they
may request evidence
related to the
recruitment, an
explanation of the
requirements for the
position, or
otherwise
investigate a
variety of other
issues of
consequence). If an
audit is issued,
subsequent to an
employer’s response,
DOL will adjudicate
the labor
certification by
issuing either an
approval or denial.
If
the labor
certification is
approved, a
certified PERM form
will be sent by mail
which must be signed
by the employer’s
representative, the
employee, and the
attorney filing the
application.
Filing the
Immigrant Petition
with USCIS
It is
at this point that
the company could
file an immigrant
visa petition (Form
I-140) on the
employee’s behalf
with U.S.
Citizenship and
Immigration Services
(USCIS). At that
time, the company
must provide
financial
information, such as
an Annual Report,
certified financial
statements, or
federal tax returns,
to show the
viability of the
company and that the
company has the
ability to pay the
employee the wage
offered (and had
that ability at the
time of filing the
PERM application).
If
the foreign national
has maintained
status in the United
States (e.g.
via an H-1B or L-1
visa) and if a visa
number is currently
available (see
below), he or she
can file an
application for
adjustment of status
(Form I-485)
concurrently with
the filing of the
visa petition.
Alternatively, an
employee may await
approval of the visa
petition and/or the
availability of a
visa number before
filing his or her
application for
permanent
residence. Approval
of the application
for permanent
residence is
contingent upon
approval of the
immigrant visa
petition. If the
employee has ever
been out of status
or is outside of the
U.S., he or she may
have to apply for
permanent residence
through the consular
post in his or her
home country.
Application for
Adjustment of Status
or Immigrant Visa
In
order to file for
adjustment of status
and be granted
permanent residence,
an applicant must
first have an
immigrant visa
number available.
Employment-based
applications are
separated into
several categories
based on the
requirements for the
position for which
the labor
certification
application is filed
and there is a
waiting list for
visas based on the
priority date and
the category. If the
initial job
requirements for the
position indicate
that it requires a
minimum of a
Master’s degree, or
a Bachelor’s degree
and 5 years of
experience, the job
falls within the EB2
(Employment-based
2nd preference)
category. If the
initial job
requirements for the
position indicate a
Bachelor’s degree
and less than 5
years of experience
or no degree and 2
or more years of
experience as the
minimum
requirements, the
job will fall within
the EB3
(Employment-based 3rd
preference)
category.
There is an annual
limit on the number
of immigrant visas
issued in each
category per
country. Visa
numbers are assigned
based on a priority
date which is
established by the
date of filing of
the labor
certification. When
the State Department
begins to run out of
visa numbers for the
current fiscal year,
the priority dates
retrogress, and only
those applications
with priority dates
prior to the date
listed on the
monthly State
Department bulletin
can be processed.
The employee will
only be allowed to
file an I-485
application for
permanent residence
once there is an
immigrant visa
number readily
available
(i.e. once
the
priority date
becomes current).
Because the
permanent residence
process through PERM
is based on a
specific position,
the employee is
required to remain
in the position
until s/he receives
permanent residence
(with some minor
exceptions).
Therefore, before
beginning the PERM
process, the
employer and
employee should
carefully evaluate
the longevity of the
position to
determine whether
the employee is
likely to remain in
the position for
many years.
Flowchart
|
