Labor Certification – PERM
The process for obtaining permanent residence based on employment is comprised of three phases:
- Labor Certification
- Visa Petition
- Application for Permanent Residence
1. Labor Certification
The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a labor certification from the Department of Labor. A labor certification is a certification by the United States Department of Labor that a shortage of qualified U.S. workers exists to fill the position held by the sponsored alien employee, and that the company is paying and will pay the employee the prevailing wage. The labor certification is valid only as long as three things remain unchanged: The alien continues to work (1) for the same employer, (2) at the same location, and (3) doing the same job. Therefore, any promotions or significant changes in job duties or location before legal permanent residence is obtained will probably invalidate the labor certification, thus making the applicant ineligible for permanent residence. If the employer is contemplating any promotions or changes in job title, job duties, or job locations for the position being certified it would be advisable to make them before the labor certification process is started.
Since March 28, 2005, DOL streamlined the labor certification process under a system called Program Electronic Review Management (PERM). An employer is required to place two Sunday advertisements for the position. For professional positions, the employer must conduct three additional recruitment steps. The employer also needs to place a 30-day job order with the State Workforce Agency SWA), as well as obtain a prevailing wage determination from the SWA. Furthermore, the employer has to internally post a job notice for 10 days. After the employer has completed the mandated recruitment steps, it may electronically file a PERM application attesting that it has undertaken the necessary recruitment under the regulations as well as attesting to various other requirements. PERM promises to certify a labor certification within 45 to 60 days although 6 months typical. Also, DOL has the authority to audit an application or to require supervised recruitment and may exercise this scrutiny for both problematic and random applications. In order to determine if there are qualified US workers available to fill the position, the attorney will assist the employer in meeting the Department of Labor (DOL) requirements in recruiting for the position.
Job requirements must be the actual minimum requirements for the position. The employer must be able to justify each requirement in relation to the job description. Requirements other than those essential to perform the job duties in a reasonable manner will be considered unduly restrictive by the Department of Labor and, generally, be disallowed. The attorney will work closely with the employer in determining the minimum requirements.
Based on conversations with persons at the employer’s company, the attorney will draft the advertisements, a job description, minimum job requirements, and determine the salary to be offered. The attorney will also provide legal assistance to the employer as they evaluate the responses from U.S. applicants. Finally, the attorney will draft all documents and letters based on information that they obtain from conversations with the employer.
Our firm is proactive and will identify problems up front. Common problems/issues include those related to the prevailing wage; experience gained on the job, education level required and special requirements. We will work with the employer to resolve any problems early in the process.
2. The Visa Petition
Upon receiving an approved labor certification, our office prepares a visa petition, which will be signed by the employer and is submitted to the U.S. Citizenship and Immigration Services along with the labor certification papers. At this time, the employer must submit documentation explaining the company’s ability to pay the employees proffered wages. In addition, we will be submitting documentation received from the employee verifying that he or she meets all of the minimum requirements listed in the labor certification.
3. The Application For Permanent Residence
The last phase of the employer’s involvement consists of providing a letter verifying the alien’s employment with the company. Although the employer’s involvement at this stage is minimal, we will be spending much time assisting the employee in gathering required documentation, such as birth certificates and marriage certificates, etc., to complete this rather involved stage of the process. At the end of this step, the employee will be granted permanent residence and shortly thereafter, be issued a green card as evidence of permanent residence.