PERM Labor Certification
Program Electronic Review Management (PERM) came into use and took effect on March 28, 2005 and replaces the previous Reduction in Recruitment (RIR) process. PERM applications are filed directly with the Department of Labor through the internet. State agencies will supply the prevailing wage, but no longer process the applications. The prospective employer must diligently test the labor market by seeking out qualified U.S. workers to fill the offered position. Any responses to the employer's recruitment efforts must be evaluated carefully. The employer can reject applicants only for lawful, job-related reasons.
PERM Procedure
A main distinction between PERM and the previous RIR Labor Certification process is that under PERM electronically filed PERM labor certification applications are normally expected to be adjudicated in approximately 45-90 days by the Department of Labor.
The labor certification is normally the first step in obtaining permanent residence status based on a prospective job offer. The labor certification is a determination that there is a shortage of U.S. workers who are willing and able to perform the offered job. Before filing an application, the employer must conduct specified recruitment activities.
This recruitment must include the following:
- Job site posting
- Two Sunday newspaper or professional journal advertisements where appropriate
- A job order through the state workforce agency
- Commercial internet advertisement, an advertisement on the employer's website, or some other print advertisement seeking qualified candidates to fill the position
The advertising requirements under PERM take about 3-4 months to complete, and must be completed before the application is filed. The advertising must have occurred within six months of filing the application. All but one advertisement and an internal notice must be placed a minimum of thirty days before the application is filed.
The employment requirements should meet the employer's business needs, but cannot be too narrow, or tailor-made specifically for the foreign worker. The labor certification application describes the job duties, salary requirements, minimum experience and education requirements needed to perform these job duties.
As part of the labor certification preparation, the employer must obtain a prevailing wage determination from the State Workforce Agency before the application is filed. No documentation need be submitted with the application.
However, the employer must maintain copies of the advertisements, resumes, and other documents showing that the recruitment actually occurred as reported. The Department of Labor will audit selected cases. Applicants must then produce all supporting documents in thirty days. If the documents are not produced immediately, the application will be denied.
Immigrant Worker Petition
At this stage, the employer will be required to demonstrate the company's ability to pay the prevailing wage, which may require submission of the company’s financial statement or tax returns. Once the labor certification is approved by the Department of Labor, the employer will be required to file an immigrant visa petition on the employee's behalf. The petition and supporting documents will be filed at a USCIS service center. This phase currently takes approximately three to five months. Premium Processing is available for this phase for an additional one thousand in filing fees. Premium Processing cases are reviewed within fifteen working days.
Consular Processing and Adjustment of Status
The employee's place in line in the quota system is "reserved" as of the date the Department of Labor accepts the initial labor certification application. This is called the "priority date." The quota varies depending upon whether an educational degree and, experience is required to perform the job.
Upon approval of the petition, an employee will be eligible to apply for permanent residence at a U.S. consulate abroad or at a local USCIS office if he/she is still in valid non-immigrant status and if the quota is "current" in his appropriate employment-based preference category. In this final phase, emphasis will be based on the employee's overall qualifications to immigrate to the United States such as whether the employee has a criminal record, or whether the employee has a contagious disease, etc. A qualified immigration attorney should, of course, assist the employee and his family with this process through the final interview.
Once the sponsored employee becomes an immigrant, the sponsoring employer must have a good-faith intent to employ him/her on a permanent basis. If the sponsoring employer lacks such intent, the application for the employee's lawful permanent residency status may be considered fraudulent. As a general rule, the employee should work for the sponsoring employer for at least one year after immigration.
During this entire process, the sponsored employee and his/her family residing in the U.S. should maintain their valid non-immigrant status. The applicant, as well as their dependent, is eligible to apply for work authorization upon filing for adjustment of status in the U.S. Spouses and unmarried minor children (under 21 years of age) must maintain their independent status. They will be able to immigrate as dependents if they apply along with the primary applicant. However, if the children are over 21 at the time the applicant immigrates, they may be excluded from the applicants approved immigrant visa.
PERM labor certification recruitment is an extremely complicated procedure and many law firms are not as familiar with the procedural and filing intricacies as they should be, which may jeopardize your case. The Hamideh Firm has successfully handled a large number of PERM cases and many of our clients have had an approved labor certification in about six months from the date the process is started.
Please contact us to start your immigration application now.