PERM Labor Certification
Related Topics:
Consequences Of I-140 Revocation And I-485 Portability
FAQ: AC21 Portability and I-140 / I-485
Occupations Not Requiring Labor Certification
FAQ: AC21 Portability and I-140 / I-485
Occupations Not Requiring Labor Certification
What is the purpose of the PERM Labor Certification process?
A foreign national may obtain a green card through the PERM labor certification process. The foreign national must have a permanent job offer from a US employer. The process requires the US employer to file and obtain a labor certification form the Department of Labor (“DOL”). In 2005, DOL implemented a new process for obtaining labor certification, entitled PERM (“Program Electronic Review Management”). There are some occupations that do not require a PERM filing; they are referred to as Schedule A occupations. The PERM process is a re-engineered labor certification process designed to expedite processing. It is an audit based application with the burden of compliance rests with the US employer and their attorney. The PERM application is filed using Form ETA 9089. The term PERM and labor certification are used interchangeably. There are various employer obligations associated with the process.
What are the employer’s obligations in the PERM process?
The employer must be willing to pay the prevailing wage to the foreign national for the specific occupation within the geographic area. The US employer must have a bona fide job opening which must be made available to US workers. The job must be a full time permanent position and its requirements must comply with what is normally required in the occupation. It should not be tailored to fit the foreign national background. The US employer must show through the PERM process that there is not a qualified US worker, ready, willing and qualified within the geographic area to fill the job vacancy. The PERM application should contain specific information about the job and the foreign national.
What information should a PERM Labor Certification application contain?
The application must include detailed information on the foreign national, and her education, training and experience. The PERM application must include a detailed job description, the educational, experience and training required for the job opening. The application must also detail any special requirements the job may require. Examples of special requirements would be third shift or extensive travel for example. Prior to filing the PERM application using form ETA 9089, the US employer must obtain a prevailing wage determination from the State Workforce Agency (SWA) and go through a mandated recruitment process.
Why the employer must conduct recruitment and what are the PERM recruitment steps?
The employer must undergo mandated recruitment process to ascertain that there are no US workers available. This must be done during the six months period immidiately prior to filing the PERM process. The regulations require two mandatory recruitment steps for professional occupations. They are placement of a job order with the STATE WORKFORCE AGENCY (SWA) serving the area of intended employment; and placing an advertisement on two different Sundays newspaper of general circulation in the area of intended employment. In addition the employer is required to adopt three recruitment steps from the following list:
(A) Job fairs
(B) Employer's Web site
(C) Job search Web site other than the employer's
(D) On-campus recruiting
(E) Trade or professional organizations
(F) Private employment firms
(G) Employee referral program with incentives.
(H) Campus placement offices
(I) Local and ethnic newspapers.
(J) Radio and television advertisements
What is the Priority Date and why it is important?
The acceptance date of the PERM application is referred to as the priority date. The priority date is a critical date and is used to track the progress of visa availability which is a prerequisite to the initiation of the adjustment of status application, counselor processing application and/or final approval of the permanent residency. Visa availability through the priority date system is tracked through a publication issued by the US Department of State called Visa Bulletin.
What information DOL requests in a PERM DOL audit and why?
The PERM is an audit based system. This means that the application is filed with no supporting documentations. DOL may request the supporting documenation by an audit system at anytime during the process of the PERM application. Audits could be conducted randomly or for an employer or application specific reasons. DOL may request a business necessity letter or evidence of all the recruitments undertaken by the employer. All documents subject to an audit should be fully prepared at the same time of filing the PERM application. The Supporting documentation for the audit must be provided upon request through an audit process by the US department of Labor. The US employer is required to retain all supporting documentation for five years from the date of fling the application. The regulations mandate that DOL can revoke a labor certification at anytime after approval if it determines that fraud was involved in the filing of the PERM labor certification.
What is a Business Necessity letter?
The business necessity letter could be requested as a part of a DOL audit when DOL is concerned that the job requirements in the PERM labor certification applicatgion exceeds what is normally required in the occupation or when DOL is concerned that the job requirements are unduly restrictive. The business necessity letter should be drafted by an experienced attorney in Labor Certification laws with input from the employer.
How is the PERM application filed?
DOL has established an elaborate web based filing system to permit for electronic filing. The web based system requires the US employer to register directly with DOL. Generally PERM applications are filed online. DOL will accept application filed by mail but it is not the preferred method of filling. Shihab & Associates files all its PERM application electronically. PERM approval is typically mailed to the attorney.
How long does it take to obtain PERM approval?
When the PERM application process began in 2006, it took only several weeks to obtain approval. Currently approvals are taking longer than six months. In the case of a DOL audits, one should expect longer processing time.
What if my PERM application is denied?
There is no waiting period mandated and in most instances a new PERM application may be filed immediately. It is critical however to understand the reason for denial. In many instances denials are the result of procedural oversight. In certain instances, some or all the recruitment steps may need to be repeated.
After the PERM is approved, what is the next step?
After the certification of the PERM, the US employer must file an immigrant petition. The foreign national must file for an adjustment of status with USCIS. In some instances, the foreign national may have to file for consular processing with the US embassy abroad in lieu of the adjustment of status.
Shihab & Associates Co., LPA is experienced in the filing and the processing of PERM labor Certification. The focused practice of Shihab & Associates Co., LPA is aimed at providing their clients with the highest quality service, qualified representation, and knowledgeable insight to expedite their clients’ needs. Contact Shihab & Associates to begin processing your PERM Labor Certification application.
Shihab & Associates Co., LPA
PERM Lawyers
| Columbus | Cleveland |
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| Washington, D.C. | Southfield |
How to Contact Us:
If you have questions about an immigration matter, and/or you need help in the process, please contact our immigration attorneys or call the law firm of Shihab & Associates Co., LPA at the nearest office close to you to speak with an attorney. We handle various matters including family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, Green Cards and Permanent Residence, and many more. Please contact us and experience how "We Embrace your Dreams and Make Them Our Goal."