Employment Based Immigration and PERM Explained

Introduction

Foreign nationals who are skilled or educated—and who have job offers—have the possibility of immigrating to the United States. The process involves three steps:

1. PERM: the employer must first obtain a “labor certification” from the U.S. Department of Labor (DOL). This process is done online through the internet. Employers must sign-up for a PERM account on the DOL website and then assign an account for our office to authorize us to submit a PERM application online on the employer’s behalf.
2. I-140 Petition to the USCIS: After the certified “labor certification” is received, the sponsored employee, employer, and our office must sign it in order for it to become valid. The labor certification will expire within 6 months of certification, and an application for immigrant visa classification under the employment-based second or third preference (I-140) must be filed prior to the expiration date.
3. Adjustment of Status / Immigrant Visa: This is the final step where the foreign national applies for lawful permanent residency or the “green card” through adjustment of status in the United States or consular processing overseas. However, this step requires that visa alien numbers must be available for the particular category.

1) PERM (Labor Certification)

The purpose of the PERM (Labor Certification) process is to establish that there are not sufficient United States workers (U.S. Citizens or U.S. permanent residents) who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and the employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed.

Employers may have agents or attorneys represent them throughout the labor certification process. If an employer intends to be represented by an agent or attorney, the employer must sign the statement set forth on the Application for Permanent Employment Certification form: That the attorney or agent is representing the employer and the employer takes full responsibility for the accuracy of any representations made by the attorney or agent. Whenever, under this part, any notice or other document is required to be sent to the employer, the document will be sent to the attorney or agent who has been authorized to represent the employer on the Application for Permanent Employment Certification form.

It is contrary to the best interests of U.S. workers to have the alien or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. This means that the attorney or the sponsored alien cannot have any influence in the consideration of a U.S. worker for the offered job. Therefore, the alien and/ or the attorney may not interview or consider U.S. workers for the job offered to the alien.

The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

A) Attestations: The employer must certify to the conditions of employment listed below on the Application for Permanent Employment Certification under penalty of perjury:

1. The offered wage equals or exceeds the prevailing wage determined, and the wage the employer will pay to the alien to begin work will equal or exceed the prevailing wage that is applicable at the time the alien begins work or from the time the alien is admitted to take up the certified employment;
2. The wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage;
3. The employer has enough funds available to pay the wage or salary offered the alien;
4. The employer will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States;
5. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
6. The employer’s job opportunity is not:
   • (i) Vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage;
   • (ii) At issue in a labor dispute involving a work stoppage.
7. The job opportunity’s terms, conditions and occupational environment are not contrary to Federal, state or local law;
8. The job opportunity has been and is clearly open to any U.S. worker;
9. The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons;
10. The job opportunity is for full-time, permanent employment for an employer other than the alien.

B) Notice of PERM Filing: Generally, the employer must give notice of the filing of the Application for Permanent Employment Certification and be able to document that notice was provided, if requested by the DOL Certifying Officer, as follows:

• (i) To the bargaining representative(s) (if any) of the employer’s employees in the occupational classification for which certification of the job opportunity is sought in the employer’s location(s) in the area of intended employment. Documentation may consist of a copy of the letter and a copy of the Application for Permanent Employment Certification form that was sent to the bargaining representative.
• (ii) If there is no such bargaining representative, by posted notice to the employer’s employees at the facility or location of the employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. The documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer’s organization.

The notice of the filing of an Application for Permanent Employment Certification must:

• (i) State the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity;
• (ii) State any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor;
• (iii) Provide the address of the appropriate Certifying Officer; and
• (iv) Be provided between 30 and 180 days before filing the application.

C) Required Recruitment Efforts: An employer must conduct the following recruitment prior to filing the application:

1. Professional occupations. If the application is for a professional occupation (where the job offered normally requires an employee to have at least a bachelor degree), the employer must conduct the recruitment steps within 6 months of filing the application for alien employment certification. The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the Certifying Officer prior to rendering a final determination.
   • (i) Mandatory steps. Two of the steps, a job order submitted to the CA EDD and two Sunday newspaper print advertisements, are mandatory for all applications involving professional occupations.
   • (ii) Additional recruitment steps. The employer must select three additional recruitment steps from the alternatives listed:
     • (A) Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
     • (B) Employer’s Web site. The use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
     • (C) Job search Web site other than the employer’s. The use of a job search Web site other than the employer’s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements required by paragraph (e)(1)(i)(B) of this section can serve as documentation of the use of a Web site other than the employer’s.
     • (D) On-campus recruiting. The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.
     • (E) Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
     • (F) Private employment firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.
     • (G) Employee referral program with incentives. The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
     • (H) Campus placement offices. The use of a campus placement office can be documented by providing a copy of the employer’s notice of the job opportunity provided to the campus placement office.
     • (I) Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.
     • (J) Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer’s text of the employer’s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
2. Nonprofessional occupations. If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.

D) Recruitment Report: The employer must prepare a signed recruitment report describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections.

E) Other Important Requirements:

• (i) Retention of Documents. Copies of applications for permanent employment certification filed with the Department of Labor and all supporting documentation must be retained by the employer for 5 years from the date of filing the Application for Permanent Employment Certification.
• (ii) Applications for permanent labor certification and approved labor certifications cannot be offered for sale, barter or purchase by individuals or entities.
• (iii) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer’s attorneys’ fees and advertising/recruitment costs. Payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.
• (iv) Job duties and requirements. The job opportunity’s requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.
  • A foreign language requirement can be included if it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following: (i) The nature of the occupation, e.g., translator; or (ii) the need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English, as documented by:
    1. The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
    2. A detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.
• (v) A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers.
• (vi) If the employer receives resumes from qualified U.S. workers, the employer must contact them and interview them. The U.S. Department of Labor recommends that the employer document their efforts to communicate with U.S. workers by sending certified return receipt letters, email messages, and/or telephone logs. Note, the employer is not required to interview every applicant. Only those applicants who appear to meet the minimum qualifications. If the applicants are not qualified and are rejected, the employer must provide an explanation in the recruitment report. The employer must retain the resumes for at least five years.

II) Immigrant Visa Petition

The approved labor certification is filed with the U.S. Citizenship and Immigration Services before the expiration date noted on the form along with other paper work to determine whether the foreign national qualifies for one of the following categories of sponsorship:

1. Employment-Based Second Preference – Members of the professions with advanced degrees or the equivalent, or aliens of exceptional ability in the sciences, arts or business;
2. Employment-Based Third Preference – Professionals, skilled workers (jobs requiring two years or more training or experience), or unskilled workers (jobs requiring less than two years’ training or experience). It will take several years to immigrate under the third preference category. Strategies to avoid the third preference unskilled classification whenever possible are imperative.

III) Applying For Adjustment Of Status Or Consular Processing

1. Adjustment of Status – If the foreign worker is within the United States, he or she may apply for adjustment of status by filing an application with the INS in the United States. The individual’s priority date, established at the time of filing the initial application for labor certification with DOL, should be current at the time of filing this application. The application can remain pending for several months before the INS issues lawful permanent residence to the foreign national. If the foreign national needs to travel abroad during this time, he or she must seek special travel permission known as “advance parole.” The foreign worker must also have employment authorization while the adjustment application is pending.
2. Who is Eligible For Adjustment of Status? – Adjustment of status is only available to individuals who have always maintained lawful status in the United States. However, those whose labor certifications or immigrant visa petitions were filed prior to January 14, 1998—which has now been extended to April 30, 2001—could adjust their status even if they have violated U.S. immigration laws by not complying with the terms of their nonimmigrant visas. These individuals would have to pay a penalty fee of $1,000. Also, certain employment-based visa applicants could adjust status if they had not been out of nonimmigrant status for more than an aggregate of 180 days, even if the labor certification is filed by April 30, 2001.
3. Consular Processing – Foreign nationals based overseas can process their immigrant visas at consular posts in their home countries. Individuals who violated their status in any way and are not eligible for adjustment of status under any of the enumerated exemptions must return to their home country for consular processing. Under the 1996 Immigration Act, individuals who overstayed their nonimmigrant visas by more than 180 days would be barred from reentering the United States for three years. Individuals who overstayed their nonimmigrant visas for more than one year would be barred from reentering the United States for 10 years. There are very limited exceptions for overcoming these bars.

Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.