Employers Considering Filing PERM Applications

Labor Certification Overview

TO: EMPLOYERS CONSIDERING FILING PERM APPLICATIONS

FROM: Fong & Aquino

LABOR CERTIFICATION - Program Electronic Review Management (PERM) to Hire Permanent Employees.

The process of filing a PERM or labor certification application on behalf of an employee involves three steps:

(1) Advertising and recruitment, overseen by the US Department of Labor (DOL)

(2) I-140 Petition in which company demonstrates ability to pay to the US Citizenship and Immigration Service (CIS)

(3) Adjustment of Status in which the employee submits his/her educational and immigration information to CIS.

Since 2005, the Department of Labor has utilized the PERM process to adjudicate labor certification applications, resulting in a dramatically streamlined process.

I. Advertising and Recruitment

Before your company begins the advertising and recruitment stage, our office will verify that the wage offered in the permanent job offer meets with or exceeds the " prevailing wage " set by the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. Our office will provide the occupational title, the skill level, and the educational requirements for the position. The SWA will then issue a prevailing wage determination with an hourly or annual salary that your company is expected to meet or exceed once the employee receives his/her greencard.

In assessing your PERM labor certification for your employee or employees, we require some information on your company's recruitment efforts over the past six months. Your answers to the following questions will help us determine whether additional recruitment must be done to meet DOL requirements.

  1. Please provide the title, general professional field, and job location or locations of the employee(s) for whom you wish to undertake labor certification.
  2. If an individual in your company is responsible for recruitment and/or interviewing, please provide that individual's name and job title.
  3. The Department of Labor generally requires two Sunday print advertisements over within the last six months pertaining to the position or positions in question. The ad should include a reference to the position, but need not contain a lengthy description of job duties and finally name the specific geographic location of where the job is offered. The ad need not include the salary.

    Please attach copies of any ads your company has placed. The copies must contain a reference to the publication used and the date. The reference should be from the bannerline of the publication or from the ad agency that placed the ad. It should not be handwritten.

  4. Additional advertisements. For professional positions normally requiring at least a Bachelor's degree, your company must also complete 3 of the following forms of advertising and recruitment at least 30 days before filing the PERM*:
    • a. Job search website, i.e. www.monster.com, www.hotjobs.com
    • b. Company's website
    • c. College recruiting and/or job fair recruiting
    • d. Trade journal or professional organization
    • e. Employee referral program
    • f. Campus placement
    • g. Private headhunter or recruitment agency
    • h. Local or ethnic (if relevant to the position) newspaper
    • i. Radio or TV ads

Please remember that any ads published within the last 6 months, containing the name of the position, geographic location, and brief description of the job duties may meet DOL requirements so you may not have to conduct all three additional recruitment steps. You will also be required to give notice to any collective bargaining representative if the position advertised is covered under a collective bargaining agreement. If there the job is not covered under such an agreement, the employer will be required to comply with an alternative notice posting.

If any steps have already been completed, please submit copies of the advertisements and a brief description of how applicants responded to the ad, how many were interviewed, and how many were hired, if any. If none were hired, please also provide a brief explanation of why they were not qualified or willing to accept employment.

* One of the 3 additional recruitment steps may occur within 30 days of filing

the PERM application as long as all other recruitment steps were finalized or

published at least 30 days before filing.

Once you have met all the advertisement requirements, you will be responsible for reviewing and interviewing any potentially qualified applicants for the position. Once it is determined by you that there were no willing and qualified applicants for the job, we will file your case electronically with the DOL utilizing the application form, ETA 9089, in which we will describe in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.

After submitting the online PERM application, a labor certification can be issued within 45-60 days unless the case is subjected to an audit for random quality control reasons, or case-specific reasons. If a case is audited, certification may take several months, depending on the workload and processing times at the DOL.

II. USCIS Form I-140 Petition for Immigrant Worker

After the labor certification is approved, the case the case is handed to CIS and the Employer/Company is required to submit proof of financial viability in the form of tax returns and/or proof of current payment to the foreign employee in the form of W-2s, payroll summaries, and/or paystubs, assuming that the foreign worker is currently employed by your company. CIS also requires general business details of your company, such as federal tax id number, gross annual income, and number of employees.

In cases where your company employs 100 or more employees, a letter from your CFO or Controller will suffice. Payroll records and tax returns may not be required.

III. USCIS Form I-485 Application to Adjust Status (to Permanent Residency)

Lastly, the foreign worker will submit proof of his/her current immigration status if the worker is currently in the US. He/she (the worker) will also be asked to provide proof of their educational qualifications, a medical examination and biometric fingerprinting and a listing of any prior visits to the US or immigration statuses held in the US. This information is provided along with submission of the Form I-485 and ancillary petitions for a work permit and travel permit.

Once all three stages (labor certification, I-140, I-485) are completed, USCIS may request an interview with the foreign employee. After the employees is granted legal permanent residency status, the so-called greencard, the employer is now required to employ the foreign employee (if the person was not working with you already) and to pay them the prevailing wage set forth in the initial stages of the labor certification.

Thank you for taking the time to gather the documentation and answer the questions discussed above. Please contact us if you have any questions regarding this process and for an estimate of current USCIS and US Department of Labor processing times.

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