Labor certification is one of the most important strategies for foreign workers to obtain immigration in the U.S. When I began to practice immigration law in 1980, the process took only a few months any place in the country. With such processing times the process made sense both for the employer and alien employee. By 2004 processing times had mushroomed to beyond five years in many parts of the country. For several years the U.S. Department of Labor has been trying to change the way alien labor certifications are processed to make the procedure again reasonable. PERM, which stands for "Program Electronic Review Management" offers what all hope may be the solution to the delays. It is essentially computer review of labor certification applications. Much in the way tax returns are computer reviewed by the Internal Revenue Service allowing the IRS to process more than one hundred million each year in only a few weeks, the DOL hopes to expeditiously process alien labor certification applications.
A labor certification is a certification by The U.S. Department of Labor that a position exists for which there are no available U.S. workers. Over the last several decades a complex and substantial body of law has evolved restricting how the job must be described and how the test of U.S. workers must be implemented. This body of law remains substantially unchanged under PERM, but the method by which the information must be presented and the method by which they are processed is radically changed.
The following is an introduction to PERM.
Who can sponsor for labor certification?
Under PERM current or potential prospective employer may sponsor an alien for labor certification if they may offer the alien permanent employment when the alien becomes a legal permanent resident. Employers may be companies or individuals not here on a temporary basis. It is appropriate for a future employer who may wish to hire an alien permanently to proceed with labor certification to determine if such future employment may be possible. A contact is not required and the offer may be withdrawn and the labor certification terminated by the employer until such time as the alien becomes "portable."
Once the alien Beneficiary becomes "portable" the plan for the sponsor to employ the alien when the alien becomes a permanent resident may change, Three conditions must be satisfied for the alien to become "portable:" 1. the labor certification must be approved, 2. the I-140 or immigration petition must be approved; and 3. the adjustment of status or I-485 must have been filed been pending for at least 180 days. Prior to portability the employer can cancel the immigration process at his discretion, after portability the employer has no such power. Once portable, the alien's only continuing obligation is to remain in the "same or a similar occupation." The alien can work anywhere or even be self-employed as long as it is in the same or a similar occupation.
PERM is a new internet-based labor certification process that enables the vast majority of cases to be adjudicated within 45-60 days. After 3/27/05 ALL LABOR CERTIFICATION APPLICATIONS WILL HAVE TO BE FILED UNDER PERM. APPLICATION FILED BEFORE THIS DATE MAY UNDER CERTAIN CIRCUMSTANCES BE CONVERTED TO PERM.
How to convert an old case to PERM
You may convert an old case by withdrawing the case and refiling an IDENTICAL case within 210 days of the withdrawal, enabling you to retain the original priority date. Advertisement needs to be redone. And additional recruitment may be required.
The wage is determined by making a formal inquiry to the State Department of Labor. The wage offered cannot be based on commissions, bonuses or other incentives.
Advertisement required includes: (1) a job notice, (2) a job order placed with the SWA, (3) two Sunday print ads OR one Sunday ad and one professional journal ad for professional positions.
For professional positions only three additional recruitment steps are required out of the following: job fair, employer web site, job search site, on campus recruiting, trade or professional organizations, private employment firms, employee referral program, campus placement office, local & ethnic newspapers, radio and tv advertisements. The Ad must include the employer's name, contact information, brief job description, geographic area. The ad need not include the salary that the alien will be paid when granted immigration. Two advertisements (as well as the job order) must be placed more than 30 days but less than 180 days before filing the application. The only requirement for the newspaper is that it be a newspaper of general circulation within the geographic area.
A recruitment report must be prepared and signed by the employer describing (1) recruitment steps, (2) results, (3) number of hires, (4) US workers rejected and reasons for rejection. Copies of all resumes received must also be retained. These documents are submitted to the Department of Labor in the event of an audit.
PERM remains similar to the old labor certification process in that an employer may require skills arising from business necessity and may use alternative experience requirements.
If the employer has had layoffs in the area of intended employment within 6 months of filing an application, the employer must document that it has notified and considered all potentially qualified laid off Us workers.
Processing Time & Procedure
PERM cases will be accepted starting March 28, 2005. PERM cases are filed on the internet but can also be filed by mail. For cases filed by internet, all parties must immediately print and sign the filing in order for it to be valid and for it to be submitted to USCIS upon approval. Most cases are approved in 45-60 days. A small number of cases will be selected for random auditing where the employer will have to provide the recruitment report or demonstrate business necessity. Employers have 30 days to respond to audit requests.
If you are interested in filing a case through PERM or converting an existing labor case to PERM, please contact our offices by calling 212 764 4222 to schedule an appointment. Or email us at email@example.com.