IMMIGRATION: PERM CERTIFICATION
Are you a foreigner already working in the US? Are you now interested in remaining in the US on a permanent basis? Or, are you a US employer looking to keep a foreign worker permanently? Here is how you do it.
Program Electronic Review Management (PERM) is the system set up by the USCIS for obtaining what is called “labor certification.” Labor certification is the first step in obtaining an employment-based immigrant visa (“green card”). The whole process is known as PERM labor certification.
Generally, foreign nationals who come to the United States for permanent residence must have a job offer that will neither (i) displace qualified American workers nor (ii) adversely affect wages and working conditions. To demonstrate the hire meets these criteria, the employer files an “Application for Permanent Labor Certification” (PERM).
Application for Alien Employment Certification
The U.S. Department of Labor (“DOL”), through the Employment and Training Administration, provides a form called “Application for Alien Employment Certification” (FORM ETA-9089). The employer (qualified by a Federal Employer Identification Number) files the application on line with the U.S. Department of Labor’s Regional Service Center. The Regional Service Center reviews the application for completeness and to ensure it complies with the standard requirements detailed below.
The DOL will either approve the application, issue a denial, or issue an “audit letter.” If there is an audit, the DOL will review the employer’s records of recruitment.
Any resumes received by the employer should be preserved for five (5) years because, should there be an audit, the employer will need to provide a detailed report regarding recruitment activities.
Regional Description & Qualifications
The regional job opening opportunity must be described without unduly restrictive criteria. Requirements which may seem tailored to the foreign worker’s specific education or experience may be seen as “gaming the system” and rejected. The job requirements must make sense given the nature of the position.
Foreign language requirements will be reviewed very carefully and an employer must be able to document the necessity of the language skills.
Any qualification required beyond those typical to the occupation will be scrutinized carefully and the employer will have the burden of proving a bona fide business necessity for such qualification.
Prior to initiating the recruitment or filing the PERM application, the employer must request a Prevailing Wage Determination from the DOL, which is compliant with federal and state minimum wage laws as well as in line with the salary scales for the position in the region.
The employer must also be able to demonstrate financial solvency to pay the prevailing wage for the position as reflected in the company’s income tax returns and payroll history. The DOL will make a determination of the prevailing wage for the job offered based on information provided by the employer, and the salary offered to the candidate must meet this minimum amount.
Advertisements must be placed in a newspaper of general circulation for two consecutive Sundays, in a professional publication or other national publication, as appropriate to the position.
The requirements of the contents of the advertisement are quite specific, such as a description of the job, experience and education requirements, and the wage offered. Forms of advertisement include, but are no limited to:
- company website,
- internal job posting,
- company newsletter,
- job fair attendance,
- campus recruitment,
- newspaper website,
- ethnic publications,
- career websites
Other Applicants for the Position
As part of the PERM application, the employer has to certify he job opportunity has been open to any qualified U.S. worker.
The employer is responsible for keeping a record of all applicants and must document why each is not available or qualified for the advertised position. The employer must review the qualifications of all applicants and interview as many applicants as reasonably possible. The DOL may require such documentation along with the resumes submitted by each applicant.
If an applicant is clearly unqualified based on his or her resume, the employer need not interview him or her. However, if the resume does not conclusively eliminate the applicant as unqualified, then he or she must be interviewed.
The labor certificate cannot be granted if there is a qualified and available U.S. worker–even if the alien is more qualified.
Unions & Collective Bargaining Groups
Notification to a union representative or bargaining agent that a labor certification application has been filed must be made if a union represents the employer’s employees. If no such union exists, a notice must be conspicuously posted on the job site. The notice must contain a description of the position as well as the salary offered.
While the posting of compensation is against the practices and policies of many employers, there is no waiver for such requirement. The information should be included.
Don’t mistake the PERM certification process with a work permit.
Although the labor certificate is a prerequisite to obtaining permanent residence based upon employment, it is not in and of itself a request for employment authorization.
The DOL onlycertifies that no U.S. worker is qualified or available and that the wages and working conditions will not negatively affect those of U.S. workers. Employment authorization can only be granted by the U.S. Citizenship and Immigration Service (USCIS), which is a separate agency.
Once the PERM application is approved, the employer must file an Immigrant Visa Petition (Form I-140) with the U.S. Citizenship & Immigration Services on behalf of the foreign worker applicant. Upon approval of the I-140 immigrant visa petition, the foreign worker applicant may finalize his/her permanent residency application either through adjustment of status in the U.S. or consular processing in his/her home country.
Roles & Responsibilities
The DOL makes the actual determination regarding the permanent labor certification application.
An attorney or his/her employees cannot lawfully or ethically participate in the recruitment process unless the attorney routinely conducts recruitment for the employer. It is recommended that one individual within the company be designated as the recruitment officer. You can expect your attorney to know how to apply the constantly changing laws and regulations in this area.
This is an important responsibility because many of the requirements for a successful labor certificate application are counter-intuitive to “real world” employment recruitment.
You can further expect your immigration attorney to do the following:
- analyze the possibilities of a successful application.
- prepare a realistic and accurate statement of qualifications and other requirements.
- guide the employer and the foreign worker through the entire process, keeping the employer informed of its obligations with regard to recruitment and responses.
Payment of Attorney Fees
On May 17th, 2007, the Department of Labor published guidelines relating to the payment of attorney fees in the labor certification context. Under 72 Fed. Reg. 27,905, the foreign national is prohibited from paying attorney fees or costs associated with the PERM process. Moreover, when the same attorney represents both the foreign worker and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer. Penalties for violating this provision can be harsh.
The prohibition of the alien’s payment of fees and costs refers only to those associated with the labor certification process. Fees and costs associated with the subsequent I-140 immigrant visa petition or I-485 adjustment of status application or immigrant visa processing are not encompassed by this Department of Labor regulation since such falls under the jurisdiction of the USCIS.
As part of the Labor Certification process, the employer will be registered with the Department of Labor’s (DOL) web site. Within five days the employer will receive an email from the DOL confirming this registration and giving a password to access alien’s application. A second email will be sent to the employer from the DOL, with a 4-digit PIN. Please print these emails for your records and give your attorney the password and PIN to have access to your application.
Further, the employer will also be registered with the State Workforce Agency to place the employment position in its website. In Florida, the website is: www.employflorida.com. It is mandatory to post the job order for no less than 30 days with the State Workforce Agency.
Let’s speak plainly for a moment. Anytime you are trying to get permanent residency, you should expect it will not be easy. The PERM process is no exception. We have provided the basic framework in the simplest language we can, but that does not mean you should go for it without an immigration lawyer. There is a lot riding on the success of your petition.
Contact our office to set up an appointment.