Labor Certification / PERM
Permanent immigration to the United States is divided into three major categories: employment-based, family-sponsored, and special programs. Employment-based immigration is divided into various categories and subcategories, distinguished principally by the level of skill and accomplishment possessed by the intending immigrant. Family-sponsored immigration is divided into several categories based on the immigrant status of the sponsor (permanent resident or citizen) and the nature of the family relationship. The employment-based and family-sponsored subcategories are known as "preferences." Special programs include asylum, the Diversity Lottery, NACARA, and the Cuban Adjustment Act. A complicated allocation system based upon category and country of origin determines how many employment-based and family-based immigrant visas are available on an annual basis. Visa availability is monitored by the U.S. Department of State ("USDOS") and published monthly in the Visa Bulletin.
Individuals may be "sponsored" for permanent residence by employers based on an offer of permanent, full-time employment. In some instances involving individuals of extraordinary ability and international recognition, it is possible to self-petition for permanent residence.
Three Steps to a Green Card
Step 1: In most instances, the process begins with an offer of full-time and permanent employment in the United States. This offer of employment, and the terms of employment, are then included in an application made to the U.S. Department of Labor ("DOL") for Alien Employment Certification (a.k.a. Labor Certification or "PERM").
Step 2: Following certification by the DOL, the green card process continues with: (a) an immigrant visa petition (filed by the employer) and (b) either an application for adjustment of status (filed by the foreign national) or immigrant visa processing by the foreign national at a U.S. Consulate abroad. The immigrant visa petition is filed with the U.S. Citizenship and Immigration Services ("USCIS") and its purpose is to qualify the foreign national as eligible to apply for permanent residence in one of the employment-based immigration categories based upon the foreign national's credentials and the job offer.
Step 3: The adjustment of status application is the foreign national's application for clearance as a permanent resident, filed within the United States. Under current law, the foreign national may file the application concurrently with the employer's immigrant visa petition. While an adjustment application is pending, the foreign national and any dependents are entitled to apply for an Employment Authorization Document ("EAD"). The foreign national may also apply for a travel document called "Advance Parole," which allows the foreign national and any dependents to enter the United States without a valid visa while the adjustment application is pending. Upon approval of the adjustment application, the principal foreign national and any accompanying dependents will be processed for the creation of their actual "green cards," which will be sent to them by mail. The alternative to adjustment of status is for a foreign national to apply for permanent residence at a U.S. Consulate overseas based upon an approved I-140 petition. This is known as "Consular Processing."
Labor Certification ("PERM")
Virtually all applications for permanent residence based upon an offer of employment require, and therefore start with, labor certification. Under the Permanent Electronic Review Management ("PERM") System labor certification program, foreign nationals who seek permanent residence in the United States based upon employment must have a job offer that the DOL certifies will neither displace qualified American workers nor adversely affect their wages and working conditions.
DOL certification is an official determination that there are no willing, available, minimally qualified U.S. workers to fill the position offered to the foreign national, and that the terms of employment will not adversely affect the wages and working conditions of similar U.S. workers.
The basic steps in preparing the application for labor certification are: (a) developing the job description and minimum requirements for the position; (b) ensuring that the terms of employment (wage, hours, duties) will not adversely impact American workers; and (c) testing the labor market through print media and other forms of recruitment to determine whether there are willing, available, and qualified American workers. Labor certification applications are submitted electronically via the DOL website. Supporting documentation is not submitted with the application, but must be maintained by the employer for five years from the date of filing. PERM differs from the prior traditional filings in that the employer performs the recruitment in advance of filing the application, and from Reduction in Recruitment ("RIR") filings in that most applications are reviewed by a computer. The job opportunity in the application, the advertisements, and the job postings must be described without unduly restrictive requirements. Unduly restrictive requirements include those that seem tailored to the foreign national's specific education or experience. Foreign language requirements will be reviewed carefully and an employer must be able to document the business necessity of such a requirement. Any qualification required beyond those normal to the occupation will be scrutinized carefully and the employer will have the burden of proving a bona fide business necessity for such qualification. As a practical matter, a successful labor certification usually requires a careful balancing of: (a) traditional duties and requirements associated with the basic job classification; and (b) distinctive and specific skills, duties, or experience that are legitimate minimum requirements that the foreign national possessed prior to starting work with the sponsoring employer.
Immigrant visas ("green cards" or permanent resident status) are available to persons whom the DOL certifies as having an offer of permanent, full-time employment (at least 35 hours per week) for a job for which there is a demonstrated shortage of qualified U.S. workers. The PERM program has been the only available labor certification process since March 28, 2005, with cases filed under the old system completed through the DOL's Backlog Elimination Centers. In addition to faster decisions, PERM involves employer attestations and extensive record-keeping requirements concerning the employer's labor market test. As with tax returns, employer labor certification records can be audited by the DOL. The employer's recruitment and other mandatory records are examined by the DOL only if there is an audit. PERM requires the employer to test the labor market for qualified U.S. workers at a wage that is 100% of the prevailing wage. PERM's recruitment requirements are either more, or less extensive than under the previous system, depending on the employer's location. Unlike the previous system, however, recruitment requirements are consistent nationwide. Labor certification cannot be granted if the employer's labor market test locates qualified U.S. workers; however, the employer is not required to hire qualified U.S. workers who respond to their labor market test. The PERM program requires registration by employers and electronic filing of applications. Applications may also be mailed to the DOL, although the DOL strongly discourages mailed filings.
The employment-based green card process can be lengthy and complex. Managers and employees embarking on this process should be aware of the potential processing times and must be prepared to be patient with the various twists and turns along the way.
The DOL regulations that became effective on July 16, 2007, require that employers pay the legal fees and associated costs of preparing, filing, and obtaining labor certification. The regulations strictly prohibit an employer from requesting that the foreign national beneficiary reimburse these costs, as well as deducting the labor certification costs from paychecks, bonuses, or other compensation. In addition to attorney fees, the costs of preparing, filing, and obtaining labor certification include costs for mandatory print advertisement s, photocopying, messenger delivery, and other processing expenditures. At this time, there is no DOL filing fee for the PERM application, though the DOL has indicated an intention to impose what could be substantial filing fees in the future.
Labor Certification Validity Period
Together with the rule that requires employers to pay the costs associated with the labor certification process, the DOL regulations now limit the validity of certified applications to a period of 180 days. Prior to the effective date of this rule, labor certifications were valid indefinitely. Under current law, employers have no more than 180 calendar days within which to file the Immigrant Petition (Form I-140) with the approved labor certification application with the USCIS. For cases approved before July 16, 2007, the 180-day period began to count from July 16, 2007, for all other cases, the 180-day validity period counts from the date of DOL certification. Where the Immigrant Petition (Form I-140) is not filed within 180 days of the certification of the application, the labor certification becomes invalid and the process must be commenced anew.
Prevailing Wage Requirement
When testing the labor market for qualified U.S. workers, the DOL requires that the wage offered be equal to or greater than the "prevailing wage" for the type of work to be performed. The DOL determines the current prevailing wage for jobs in particular geographic areas based, in part, on the amount of experience required by the employer. Discretionary bonuses, commission, and cost-of-living allowances can be included when calculating the offered wage if these additional payments are made on a monthly or more frequent basis and provided that the employer will guarantee a salary that meets or exceeds the prevailing wage. The prevailing wages under PERM cover four levels, rather than two levels of wages as in the previous regulations, and this is a big improvement. A prevailing wage determination must be obtained from the State Workforce Agency ("SWA") at the start of the case, and the prevailing wage must be paid when the beneficiary becomes a permanent resident. The employer is not required to pay the prevailing wage at the time of filing a PERM application, although the employer must demonstrate an ability to pay the prevailing wage at the time the PERM application is filed through the date that the Immigrant Petition (Form I-140) is filed with the USCIS. Proof of ability to pay the prevailing is usually accomplished with the employer's tax returns or other similarly credible evidence.
PERM labor certification requires the employer to conduct recruitment no more than 180 days, and no fewer than 30 days, prior to filing with the DOL. Recruitment under PERM can be concentrated and conducted over a relatively brief span and no longer needs to be spread over a period of several months. Moreover, PERM involves different levels of recruitment for non-professional and professional positions. The employer's recruitment efforts and the labor certification application must reflect the employer's actual minimum educational, experience, and any special requirements for the position, both in conformity with DOL rules, and as justified by the employer's business needs. U.S. workers, which include U.S. citizens, permanent residents, and foreign nationals authorized to work permanently in the United States, may be rejected only for lawful job-related reasons.
Recruitment testing the labor market must be conducted at least 30, but less than 180 days prior to filing the application. Specifically, the employer must post a notice of the job opportunity at the job site for at least ten consecutive business days; utilize any and all in-house media; place a 30-day job order with the SWA having jurisdiction over the place of employment; and place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment.
A Posting Notice must be placed on the employer's premises (or at the place of intended employment) for 10 consecutive business days. This requirement cannot be waived. This Posting Notice must indicate the wage offered, but can be a wage range, the lower end of which must meet or exceed the prevailing wage.
All in-house media must be utilized to recruit for the position in accordance with normal procedures for recruitment of similar positions in the organization. Use of in-house media includes available print and electronic means. Utilizing this form of recruitment should be handled in a manner consistent with its use when recruiting for other similar positions in the organization. The duration of the in-house media notification should be as long as other comparable positions are posted.
The 30-day job order with the SWA allows the SWA to forward to the employer the resumes of individuals who responded to the job order. Practically speaking, SWA referrals are infrequent in most cases.
The employer's two print advertisements must be placed in a newspaper of general circulation in the intended area of employment and may be placed on consecutive Sundays. The advertisement must list the name of the employer, the city or geographic area of employment, and a description of the position specific enough to apprise workers of the job opportunity. The ad must direct applicants to send resumes or report to the employer and provide an appropriate address. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.
Additional Recruitment Requirements for Professional Positions
Professional positions are those that require at least a bachelor's or higher degree to perform the job duties. The DOL published a list of occupations that it considers to be professional, though professional positions are not limited to those indicated on this list. If the employee being sponsored for permanent resident status holds H-1B status or if the minimum requirements to be stated on the application form indicate that a bachelor's or higher degree is required, the position generally is deemed professional. In professional cases, the DOL requires the employer to use at least three different additional types of recruitment from the following options:
The employer's web site.
A job search website other than the employer's. (Please note that a web page advertisement generated in conjunction with a print advertisement meets this requirement.)
Trade or professional organizations.
Private employment firms.
An employee referral program if it includes identifiable incentives.
A notice of the job opening at a campus placement off ice, if the job requires a degree but no experience.
Local and ethnic newspapers, to the extent they are appropriate for the job opportunity.
Radio and television advertisements.
A post-recruitment report must be prepared and maintained that describes the recruitment steps taken and the results. This report must indicate the number of U.S. workers rejected, categorized by the lawful, job-related reasons for rejection. An applicant's failure to meet the employer's stated minimum requirements is a lawful reason for rejection. However, if a worker lacks a skill that may be acquired during a "reasonable period" (the definition of which will vary by occupation, industry, and position) of on-the-job training, the lack of that skill is not a lawful basis for rejecting an otherwise qualified worker. This and other required documentation must be carefully prepared with the assistance of counsel and must be retained by the employer for a period of five years from the date of filing.
PERM applications require completion of Form ETA-9089, Application for Permanent Employment Certification, and are best filed electronically. Employers, through counsel, access the appropriate website, complete the form as prepared by our office, and submit the form to the DOL. Incomplete applications will be denied. A priority date (the foreign national's place in line for his or her immigrant visa) is assigned the date the application is accepted for filing by the DOL. A copy of the completed form must be maintained in the employer's records. Once the form is certified by the DOL, the employer must sign the form and place a copy of the signed form in the records. The original Form ETA-9089 certified by the DOL and signed by the employer must accompany the immigrant petition filed with USCIS.
No supporting documentation is submitted to the DOL with Form ETA-9089. Instead, the employer must maintain supporting documentation of the recruitment efforts and results, in the event that an audit is required or the DOL otherwise requests certain documents. Our firm assists employers in compiling and organizing these documents, which must be retained for a period of five years from the date of filing Form ETA-9089.
PERM Audits and Supervised Recruitment
A DOL audit can result in a request to review all or part of the employer's case file and the recruitment undertaken for the submitted PERM application. These audits will be both "triggered" and random. An employer has 30 days to respond to the audit request, and after a review of the documentation, the DOL can request additional documents, request that the employer conduct supervised recruitment, or approve or deny the case.
Supervised recruitment can be ordered by the DOL after receipt of an audit response or as part of mandated supervised recruitment when an employer has failed to respond to an audit letter. Under supervised recruitment, DOL reviews all advertisements and instructs the employer where and for how long to place the advertisement. Applicants will submit requested documentation to the DOL, which will forward it to the employer. Moreover, the employer will be required to submit a more detailed recruitment report to the DOL for PERM applications.
The DOL is authorized to review an employer's case file and all documents associated with a PERM application for a period of up to five years from the date the application was submitted. In essence, this is a window during which an approved labor certification may be investigated by the DOL, the Department of Homeland Security, or the State Department regarding whether fraud or willful misrepresentation of a material fact was involved in the labor certification application.
Upon approval of the PERM labor certification application by the DOL, an immigrant visa petition is submitted by the employer to USCIS. Basic information about the employer's business, such as its number of employees and annual revenues, and a signature are required for this petition. It is the policy of the USCIS to require verification of employers' ability to pay the wage offered in the labor certification application at the time the labor certification was filed through the date of the filing of the Immigrant Petition (Form 1-140). Financial documentation may be in the form of W-2 forms, income tax returns, audited financial statement, or other documentation that adequately demonstrates the employer's ability to pay the offered wage. Evidence that the employee possessed the required education, experience, and/or special skills at the time the labor certification was filed also must be submitted.
The final step(s) in applying for permanent resident status involves one of two processes: adjustment of status in the United States, or consular processing abroad. In either case, the end result is permanent resident ("green card") status. It is important to note that there are considerable differences in these two approaches, and which is available or most desirable depends on the individual facts of each case. Importantly, an application for adjustment of status may not be filed, and a final consular interview may not be scheduled unless the foreign national's "Date for Filing Application" is "current". This date, as well as the "Application Final Action Date" (which is the date upon which the application may be approved and the immigrant visa issued), are published in the Department of State's monthly Visa Bulletin, which sets forth immigrant visa availability by preference category and by country of birth.
Permanent resident status based upon labor certification is available under the Employment-Based second and third preferences, with a special line for so-called "Other Workers" within the third preference for those whose jobs require less than two years of education, experience, or training. Backlogged waiting lines are now common for persons born in India, China, and the Philippines, and worldwide under the other worker category however in October of 2015 the immigrant visa availability system was modified to permit the filing of Adjustment of Status (establishing the "Date for Filing Application) in advance of when immigrant visas may be available for approval (Application Final Action Date) which allows the worker to obtain employment authorization and travel documents much soon (in some cases years earlier) , than they would otherwise, which alleviates the dependency on visas for temporary work authorization, and allows them to change employers.
For an approved labor certification application to be valid, the employer must intend to employ the sponsored individual in a full-time capacity in the position offered, and in the same geographic area once immigrant status has been accorded. In other words, labor certification is job specific, employer specific, and specific to a particular Statistical Metropolitan Area. The employer's intentions must be reiterated shortly before the immigrant visa is issued. The beneficiary of the labor certification must assume the job offered in the labor certification application once permanent residence is granted and must intend to work for the employer indefinitely. The law does not require a minimum period of employment in the position offered after the job is assumed. A partial exception to these rules exists for individuals whose adjustment of status applications have been pending before the USCIS for more than 180 days. Under those circumstances, the employee may continue his or her case without prejudice if he or she acquires another job which is the same, or similar to the job in the labor certification application. What constitutes "same or similar," like other aspects of this process, should be discussed with counsel.
The Immigration Reform and Control Act of 1986 ("IRCA") provides that employers who knowingly employ aliens unauthorized to work can face civil fines unless the employee was employed prior to November 7, 1986. IRCA also requires employers to scrutinize all employees, regardless of citizenship status, about their right to work and to keep records about this. A grant of labor certification does not authorize a non-citizen to work. This occurs when permanent resident status is granted unless there is alternative eligibility for employment authorization, such as H-1B, L-1A, or L-1B status, or based upon a pending adjustment of status application.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.