1. The PERM Labor Certification
For most foreign nationals seeking employment based permanent resident status (Green Cards), the process is composed of three stages:
1) the Labor Certification application which is processed by the U.S. Department of Labor (DOL);
2) the Immigrant Visa Petition which is processed by U.S. Citizenship and Immigration Services (USCIS);
3) the Adjustment of Status application (or Consular Processing) which is also processed by the USCIS.
On December 27, 2004, the U.S. Department of Labor issued regulations that significantly alter the rules for obtaining a certified labor certification application. Effective on March 28, 2005, the Regulations on Labor Certification for the Permanent Employment of Aliens in the United States (or PERM regulations) put in place an entirely new procedure for filing and processing labor certification applications. Many of these changes are positive and result in labor certification applications being processed more quickly. Other changes add levels of complexity and process that did not exist before.
The Labor Certification application is an attestation by an employer that it has conducted a test of the labor market in the local area for the position for which a foreign employee is being sponsored, and that it has failed to find U.S. workers who are qualified for the position. The PERM (Program Electronic Review Management) labor certification program is designed to ensure that the employment of foreign workers on a permanent basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. A permanent labor certification issued by the Department of Labor allows an employer to hire a foreign worker to work permanently in the United States.
In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services, the employer must obtain an approved labor certification request from the DOL. The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
2. The Employer Advertisements and the PERM Labor Certification Application
The Labor Certification is an immigration process step. Its goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers". The Labor Certification is a process of proving that there are no qualified U.S. workers for the position being offered. If there are qualified U.S. workers, then the alien worker cannot be offered the position on a permanent basis.
The alien worker must have a job offer from a U.S. employer in order for the employer to file the Labor Certification. A U.S. employers file the Labor Certification application at the beginning of the alien employee's immigration process. A Labor Certification is typically for a particular U.S. employer who files the Labor Certification with the U.S. Department Of Labor. Also, the law forbids alien workers from paying any of the costs associated with an Labor Certification.
An employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both advertisements must be placed more than 30 days, but not more than 180 days before filing. The advertisement must list the name of the employer, the geographic area of employment, and a description of the vacancy specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the advertisement.
The advertisement must direct applicants to send resumes or report to the employer.. The physical address of an employer is not required. A central office or post office box may be designated for receipt of resumes. The advertisement needs not to include the salary or a detailed listing of the job description and requirements. However, if the advertisement does include the salary, the salary stated must meet or exceed the prevailing wage. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday advertisements.
A job order should be placed through the State Workforce Agencies (SWA). SWAs are not required to have a uniform job order form. Some SWAs have an online job order system, while others do not. Regardless of the method the SWA uses, the employer should print out any documentation that proves the job order was placed for the required 30-day period.
The PERM regulations use a form - the Application for Permanent Employment Certification for the labor certification application. This form can be filed either electronically or by mail at one of several regional processing centers. The Form is filed without any supporting documentation. The Form is quite lengthy, 10 pages in total, and requires that the employer and the sponsored foreign employee make a number of attestations concerning the nature of the recruitment, the job opportunity and prevailing wage as well as the credentials of the foreign employee.
The questions in the PERM application form include whether the employer provided notice to its employees, whether the alien beneficiary gained any of the qualifying experience with the employer, whether the alien is currently employed by the employer, whether proficiency in a foreign language is required to perform the job duties, whether U.S. applicants were rejected for solely job related reasons. The majority of questions would be Yes or No. PERM will provide fast processing for cases.
3. The Minimum Position Requirements and Prevailing Wage Determination
The DOL will no longer use Specific Vocational Preparation levels as the measure of the minimum requirements for a position. The DOL now utilizes the Occupational Information Network (O*NET) Job Zones to determine the standard minimum requirements for a position. The O*NET is a comprehensive database of worker attributes and job characteristics. The occupations in the O*NET database are related to a common framework that describes job requirements and worker attributes.
Under the PERM regulations, the salary to be paid to the sponsored foreign employee must be at least equal to the Prevailing Wage for the occupation in the local area. Prevailing Wage determinations are made by the local State Workforce Agency based on published Department of Labor wage data. The employer must pay at least 100% of the prevailing wage. The employer must submit a prevailing wage request to the SWA. The DOL will maintain a separate wage survey for colleges and universities.
Finding no qualified, available U.S. workers for the position, or in the case of teaching faculty, finding the foreign national is more qualified, the employer completes a labor certification application and submits it either electronically or via mail directly to the DOL. Except for a recommended or randomly selected audit, the DOL will issue a determination. Upon filing, the case will either be approved, denied, or referred for audit, in any event within 45 to 60 days. If denied, a new application based presumably on a new period of pre-filing recruitment can be filed without delay.
4. The Prevailing Wage Determination
To file the PERM Labor Certification application, the U.S. employer needs to obtain a Prevailing Wage Determination from the State's Department of Labor for the alien employee. This Prevailing Wage Determination establishes the required minimum wage for the job position. It is better to obtain the Prevailing Wage Determination prior the employer to start the recruitment process.
Obtaining the prevailing wage before recruitment process beginning can avoid many potential complications. The employer should obtain Prevailing Wage Determination before the recruitment process for the position beginning, to avoid if the alien employee's wage in the recruitment process is lower than the actual Prevailing Wage Determination issued by the Department of Labor of your state.
Also, the PERM Labor Certification should be filed during the assigned time period of the Prevailing Wage Determination, thus the employer should obtain the Prevailing Wage Determination before the it starts the recruitment process, to avoid the Prevailing Wage Determination expires, or have to start the entire recruitment process again.
5. How to Get the Prevailing Wage before File ETA Form 9089
The Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers. Therefore, the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. U.S. employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Helpdesk Center (NPWHC), or by accessing other legitimate sources of information such as the Online Wage Library (http://www.flcdatacenter.com/), available for use in some programs.
An employer must use ETA Form 9141 to request a Prevailing Wage Determination (PWD) from the NPWHC. The ETA Form 9141 is available in the Forms and Instructions section of the OFLC website at http://www.foreignlaborcert.doleta.gov/form.cfm
In the ETA Form 9089 filing, the employer should include the the NPWHC provided information including:
1) the prevailing wage,
2 the prevailing wage tracking number,
3) the SOC (O*NET /OES) code,
4) the occupation title,
5) the skill level,
6) the wage source,
7) the determination date, and
8) the expiration date.
All employers filing the ETA Form 9089 should attest to having conducted recruitment prior to filing the application. The employer has the option of filing an application online or by mail. But Department of Labot recommends that employers file online at www.plc.doleta.gov, it will ensure the employer has provided all required information, bacause an online application can not be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
The electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the online system. After registering and establishing an account at www.plc.doleta.gov, employer can fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
6. The Audit of the PERM Application and the Supervised Recruitment
The review of the labor certification application or random selection may lead to an audit of the application, and an audit letter will request specific documentation that must be submitted by the employer. Documentation must be submitted within 30 days of the audit letter, and one discretionary extension may be permitted. The failure to timely respond will result in a denial of the labor certification process. Substantial failure by the employer to provide required documentation will result in a denial of the application and may result in a determination by the Certifying Officer that the employer be required to conduct supervised recruitment in future filings of labor certification.
The DOL may elect to conduct supervised recruitment if they consider it necessary based on the employer response to the audit. If referred for a period of supervised recruitment, the DOL will instruct the employer to engage in additional recruitment as determined by the DOL, and will then have to submit written evidence to the DOL detailing the recruitment and its results. At this stage, the DOL can also penalize an employer, presumably for failing to follow the PERM regulations, by requiring that all labor certification applications from that employer go through supervised recruitment for a period of up to 2 years.
7. The Pre-certified Occupations in Schedule A
Schedule A occupations are those recognized and identified by the U.S. Department of Labor as occupations that do not have sufficient U.S. workers who are able, willing, qualified, and available, and in which the wages and working conditions of U.S. workers will not be adversely affected by the hiring of foreign nationals for these positions. These occupations are pre-certified, or certified in advance. Thus, they do not have to undergo the labor certification process to determine whether U.S. workers are available. These professionals have to file with the U.S. Citizenship and Immigration Services, bypassing the DOL labor certification process.
1) For Physical Therapists: An employer seeking Schedule A labor certification for an alien to be employed as a physical therapist must file as part of its labor certification application a letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment, stating the alien is qualified to take that state written licensing examination for physical therapists.
2) For Professional Nurses: An employer seeking a Schedule A labor certification for an alien to be employed as a professional nurse must file as part of its labor certification application documentation that the alien has received a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); that the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment; or that the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN).
3) For Aliens of Exceptional Ability in the Sciences or Arts: Aliens of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application, and who intend to practice the same science or art in the United States. For purposes of this group, the term science or art means any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill. An alien, however, need not have studied at a college or university in order to qualify for the occupation.
4) For Aliens of Exceptional Ability in the Performing Arts: Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.
8. The Green Card Application Process after the PERM Labor Certification Approval
For a U.S. employer to seek U.S. permanent residency for an alien employee, the following is the process after the PERM Labor Certification approval:
1) The employer should file Form I-140 application, Petition for Alien Worker, and also submit the job offer and other evidence to USCIS.
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, if an immigrant visa number is available, and the alien beneficiary is in U.S. On the other hand, if the alien beneficiary is outside the United States when an immigrant visa number becomes available, the alien could complete the process of status adjustment at a nearest U.S. consulate office.
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)
9. The Processes from the Labor Certification to U.S. Green CardThe ETA Form 9089 is published by U.S. Department of Labor (DOL), and it allows U.S. employers to seek the Labor Certification for a prospective alien employee. To obtain the Labor certification from the DOL, the U.S. employer needs to first get what’s called a prevailing wage determination (PWD) from the DOL.
After the employer has obtained the prevailing wage determination, then they should go through a careful process of advertising and recruiting for the job that the employer is being offered, which is a process for the employer to determine that there are no qualified U.S. workers willing and available to take the offered job. Thereafter, the employer should fill out and submit Form 9089 to the U.S. Department of Labor to apply for the Labor Certification.
If all goes well, the U.S. Department of Labor will issue a Permanent Labor Certification in its response, which allows the employer to submit an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) on Form I-140, based on the issued Labor certification from U.S. Department of Labor. After the Form I-140 petition is approved by USCIS for an immigrant visa, the alien employee will be allowed to file Form I-485 application to get U.S. Green Card.
10. File a U.S. Green Card Application for Yourself
Most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.
The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.
Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.
The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.
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