Labor Certification Application (PERM)
PERM stands for Program Electronic Review Management system, which is governed by the U.S. Department of Labor and is the first and most important step in the green card application (“labor certification stage”).
An approved labor certification is a document issued by the U.S. Department of Labor (DOL) certifying that:
• The employer needs the foreign worker’s skills and abilities;
• The wage offered by the employer meets the DOL’s prevailing wage requirements;
• The employer has tried to recruit U.S. workers for the position but he/she has found no qualified U.S. workers who are ready, willing and able to fill the position; and
• The employment of the foreign worker will not adversely affect the wage and working conditions of similarly employed U.S. workers.
The most important steps of PERM application are summarized below. Please note that PERM must be filed by the employer, not the employee. We work with both small and big companies that employ foreign workers. We guide employers through this complicated process, and assist them at its each stage, to the extent allowed by the regulations.
Prevailing wage determination
Employer must obtain the prevailing wage from the local State Workforce Agency (SWA) and make a commitment to pay at least 100% of prevailing wage in a given area.
Employer must place a job order with SWA serving the area of intended employment for a period of thirty days.
Notice of filing
Employer must file a posting notice at all work locations for at least ten consecutive business days.
Not less than thirty (30) days but no more than one hundred eighty (180) days prior to filing PERM application, the employer must place two Sunday newspaper advertisements (on two different Sundays) in a newspaper of general circulation in the area of intended employment.
For professional jobs (for which a bachelor’s degree or higher is a customary requirement), the employer must take at least three additional steps from the following alternatives: job fairs, employer’s website, job search websites, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local or ethnic newspapers where appropriate to the occupation, or radio and television recruitment.
Employer must make good faith effort to recruit workers, and interview interested U.S. workers. Any responses to the recruitment must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons. A recruitment report must be kept by the employer and provided to the DOL in case of audit.
The employer must complete form ETA 9089, Application for Permanent Employment Certification, and file it electronically, either by its authorized representative, or the immigration attorney. Supporting documentation and evidence of recruitment need not be filed with the application.
The most important aspect of drafting the application is to define the true minimum requirements for the position. The requirements generally must be “normal to the occupation”, otherwise the DOL will deny the application.
The DOL may select an application for auditing, either at random, or to ask for specific information. At that time, DOL may also order a supervised recruitment.
It is crucial to remember that approved labor certification neither gives the beneficiary an authorization to remain in the United States, nor grants him/her permission to work.
The labor certification process is very complicated and requires a thorough analysis of the foreign worker’s credentials. Very often the success of your case is contingent on the strategy recommended by an immigration attorney. Please do not hesitate to contact us to make sure that your application is drafted and filed correctly.
Next steps at the USCIS
After approval of alien labor certification by the DOL, the sponsoring employer must file an I-140 petition with the USCIS to determine whether the foreign national qualifies for either an EB-2 or EB-3 category of sponsorship, and to have the immigrant visa available to the alien worker. At that time, the employer must show the financial capacity to pay the proffered salary, as indicated on the PERM application. Subject to visa availability, and after approval of the I-140 petition, the alien worker can adjust his/her status to lawful permanent resident.
Contact our experienced attorneys in Vienna, Virginia for advice on employment-based Green Card procedure
Attorneys at Partovi Law LLC, have extensive experience in filing PERM applications with the Department of Labor as well as preparing response to the Department of Labor’s audits. Please call us at 703-752- 6148 to schedule an appointment.