Frequently Asked Questions: Perm Labor Certification

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Q: What is a PERM labor certification?

A: The PERM labor certification (PERM) is the procedure for applying for labor certification. The PERM process was developed by the DOL to streamline the filing and processing of labor certifications for foreign workers. It went into effect on March 28, 2005. All labor certifications filed after March 28, 2005 must be filed using the PERM regulations. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. worker (U.S. citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM labor certification. When filing the application, the employer or its attorney submits application form ETA 9089 either through the Internet or via mail. The main distinctions between PERM and the previous labor certification process is that under PERM: (1) PERM applications can be submitted online; (2) most cases will be adjudicated within 3 months; (3) the recruitment requirements are enhanced and standardized; and (4) no supporting documents are submitted at the time of filing (however, the supporting documents are required to be filed if the application is chosen for auditing).

Q: What does PERM stand for?

A: PERM stands for “Program Electronic Review Management process”. PERM is an entirely new process for labor certification applications.

Q: When did PERM become effective?

A: PERM became effective on March 28, 2005.

Q: Which government agencies are involved in PERM labor certification?

A: The U.S. Department of Labor (DOL) is involved in the PERM labor certification application. Individual State Wage Agencies (SWA) no longer play any role in PERM labor certification process. The USCIS is not involved in the PERM process.

Q: Which government agency determines the Prevailing Wage in the PERM labor certification process?

A: Effective January 4, 2010, the Prevailing Wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). The SWA will no longer be involved in determining the Prevailing Wage for PERM labor certification petitions.

Q: What does the Department of Labor (DOL) do in the labor certification process?

A: The DOL, through its two national processing centers (NPC) in Atlanta and Chicago, and one National Prevailing Wage and Helpdesk Center (NPWC) in Washington DC, adjudicates PERM labor certification applications for the whole nation. State agencies no longer participate in adjudicating labor certification.

Q: What is USCIS?

A: USCIS stands for United States Citizenship and Immigration Services. It is the agency of the U.S. government principally responsible for matters dealing with aliens in the United States. Such responsibility includes jurisdiction over immigrant petitions, such as those requiring a labor certification, although the labor certification process itself is still presided over by the U.S. Department of Labor (DOL). Prior to March of 2003, the USCIS was called the Immigration and Naturalization Service (INS). For a brief period it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. For purposes of this web site, we use the current accepted name of U.S. Citizenship and Immigration Services or USCIS.

Q: What is the purpose of labor certification?

A: The purpose of the labor certification process is to protect the employment prospects and working conditions of U.S. workers. To obtain a labor certificate, one must prove to the DOL that there are no qualified, available and willing U.S. workers for the position offered to the alien. Specifically, the labor certification process requires the employer to test the local labor market to determine whether there is a qualified U.S. worker (permanent resident or U.S. citizen) available to fill the proposed position. Only when the employer shows that it cannot find a qualified and willing U.S. worker to take the position offered, may the employer file a PERM labor certification for an alien beneficiary who is qualified for the position.

Q: What is a labor certification and who needs it?

A: A labor certification is a certification by the U.S. Department of Labor that there are not sufficient qualified, willing, available and able workers to fill the position that is being offered to the alien beneficiary. The certification, in turn, allows an employer-petitioner to file an EB-2 or EB-3 employment-based immigrant petition on behalf of the foreign national employee. It is the first step in most EB-2 and EB-3 employment-based immigration cases. EB-1 and EB-5 self-petitioners and beneficiaries, beneficiaries of National Interest Waivers, and those seeking employment in schedule A and sheepherder occupations, are exempt from filing labor certification applications with the DOL prior to filing the I-140 immigrant petition.

Q: Who is considered a qualified U.S. worker for purposes of a labor certification?

A: For purposes of a labor certification, a U.S. worker is defined as a U.S. permanent resident, a U.S. citizen, or other specially authorized alien (such as asylees or refugees) who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the labor certification application.

Q: Who is the petitioner of the PERM labor certification?

A: A PERM application must be filed by a U.S. employer, not by the foreign national employee. The foreign national employee is only the beneficiary of the application. The employer files the application on the alien’s behalf.

Q: Is there a difference between electronically submitting the application and sending the application through the mail?

A: Yes. Filing the application electronically will ensure that the application arrives at the National Processing Center (NPC) faster, meaning an earlier priority date. If one sends the application through the mail, it will take time for the NPC to receive it, and then a data entry clerk will have to enter the data manually into the electronic system. Once entered into the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. This will increase the time it takes to process the application. If a case is filed by paper, it is more likely that the processing time will takes longer than 2-3 months. However, this does not mean that filling the application electronically is more successful.

Q: Is the PERM labor certification process complex?

A: A PERM labor certification application is a very complicated procedure. It requires both substantive legal knowledge and practical experience, and not only the knowledge of the PERM process, but also experience in dealing with the recruitment process, which is regulated by law. We recommend that you consult with an experienced immigration attorney if you are interested in filing a PERM labor certification application.

Q: What does the employer need to do during the preparation and case processing?

A: Although the attorney will do most of the paperwork, the employer’s cooperation is necessary, as the DOL requires some steps be handled exclusively by the employer. In detail, the employer will need to perform the following:

• Provide relevant information and documents about the employer and job description;
• Review and approve the job descriptions and qualification requirements prepared by the attorney;
• Register on the PERM online filing system, if filing online;
• Review and approve recruitment advertising and posting schedules prepared by the attorney;
• Designate an officer to review and conduct telephone interviews or in-person interviews, if necessary, and to make determinations as to each applicant;
• Review the recruitment reports prepared by the attorney and sign the recruitment report.

Q: How long does the PERM labor certification take from the start to approval?

A: Usually, most PERM cases take around 6-10 months from the start to approval. The recruitment process, including designing the job description, obtaining a prevailing wage determination, interviewing applicants and completing the recruitment report, takes around 3 months. From that point, the DOL review and adjudication process takes around 3-7 months depending on the number of pending cases at its processing centers.

Q: How long is an approved labor certification valid?

A: An approved labor certification is valid for 180 days following approval. The USCIS will reject any I-140 filings made by employers after the labor certifications have "expired."

Q: How much does a PERM labor certification application cost? Who should pay for it?

A: There are two major costs involved in a PERM labor certification application: advertisement fees and attorney’s fees. The cost of advertising for the available job position can vary from several hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisement must be placed. Please visit our attorney’s fees page for the most updated information on attorney’s and filing fees.

Effective July 16, 2007, employers must pay all of the costs for preparing, filing and obtaining a labor certification, including recruitment and attorney’s fees.

Q: How much is the DOL filing fee for a PERM labor certification application?

A: No DOL filing fee is required for a PERM labor certification application.

Q: I filed a PERM application and realized that I made a mistake. Can I go back and correct this mistake?

A: No, once the application is submitted, it is considered final and no changes can be made. The only remedy for a mistake is to withdraw the application and submit a new one. For this reason, we recommend that you retain the services of experienced attorneys, like those at Zhang & Associates. When you retain Zhang & Associates, an individual attorney will prepare your case, and then one of our most experienced attorneys will second check it before filing, ensuring your application is accurate and complete.

Q: Can a Company apply for a PERM labor certification on behalf of a person who is not currently an employee?

A: Yes. A labor certification application addresses prospective employment. You are not required to work for the employer until you obtain your green card approval. You do not need to work for the company-petitioner while the company is still petitioning for you.

Example:
Joe has a labor certification application filed on his behalf by Company A while he is working for Company B, which is sponsoring his H1-B visa. Joe is not required to start working for Company A until his adjustment of status application (I-485) is approved (An I-485 is one kind of green card application). Until that point, he may work for Company B.

Example:
Company C files a labor certification application on behalf of Stephanie who is currently living in Paris and not an employee. This is permissible, because Stephanie is not required to work for Company C until she receives an immigrant visa through consular processing and comes to the U.S. It does not matter whether Stephanie is living in the U.S., or whether she is an employee for Company C, before then.

Q: What is the difference between a labor certification and a work permit?

A: A work permit or Employment Authorization Document (EAD) is a document that the USCIS issues to aliens stating that they are eligible to work on a temporary basis within the U.S. In contrast, a labor certification DOES NOT give the alien authorization to work within the U.S. Rather, it deals with future employment. Instead, a labor certification is the first step that allows the employer to file an immigration petition on the alien’s behalf.

Q: Who can obtain a Green Card without an approved labor certification?

A: Family-based immigration cases DO NOT require labor certifications. In addition, aliens who qualify as any of the following do not need a labor certification for their Green Card application: Aliens with Extraordinary Ability, Outstanding Researchers or Professors, Multinational Corporation executives or managerial transferees, National Interest Waiver candidates, Immigrant Investors, Religious Workers, or some pre-certified occupations (such as registered nurses).

Q: Does an approved labor certification allow me the legal right to work within the U.S.?

A: No. An approved labor certification only allows your employer to file an EB-2 or EB-3 category immigration petition on your behalf.

Q: Does an approved PERM labor certification provide me legal status within the U. S.?

A: No. It will, however, often provide the foundation for a later filing that can afford you legal status in the U.S. as a lawful permanent resident (green card holder).

Q: What type of job position qualifies for a PERM labor certification application?

A: Any position may qualify, so long as the employer attests (and demonstrates through active recruiting) that there is a shortage of qualified and willing U.S. workers.

Q: I have a part-time job and my employer agrees to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?

A: No. The job offer must be for a permanent and full-time position. Part-time positions do not qualify. Please noted, however, that the permanent and full-time requirements are for the future position when permanent residency is granted. You are not required to work full time at the time the labor certification petition is filed.

Q: My employer is a start-up company that currently is operating without a profit. Is my employer eligible to file a labor certification application on my behalf?

A: Yes, it is possible. A profitable company is not a requirement for filing a labor certification application. However, the petitioning company is required to show its ability to pay the proffered wage from the date of filing until the alien receives his or her green card.

Q: What are the employer requirements for a PERM labor certification application?

A: The employer must attest to the following:

• This is a bona fide (good faith) job offer; and
• The job offer meets prevailing job wage minimum requirements; and
• The offered working conditions and environment do not adversely affect those of U.S. workers; and
• There is no qualified U.S. worker available to fill the position.

Example:
Lawrence decides to form his own company, Company Z, in order to obtain a green card based on an employer-sponsored immigrant petition. Lawrence’s company, Company Z, files a PERM labor certification application on his behalf. The labor certification application will most likely be denied because the Department of Labor will not view this as a a bona fide or good faith job offer; instead, the job was created solely to accommodate the alien employee.

Example: 
Susan’s employer, Company D, files a PERM labor certification application on her behalf. Her current salary does not meet minimum Prevailing Wage requirements. This does not affect Company D’s eligibility to file the application, because Susan’s current salary does not need to meet Prevailing Wage minimum requirements. Company D is only required to pay the Prevailing Wage beginning with the time Susan’s adjustment of status application (for a green card) is approved. Again, the labor certification is based on a prospective job offer. However, Company D must show its ability to pay the proffered wage throughout the whole process.

Q: Must I work for my employer during the labor certification process?

A: No. You do NOT need to work for your employer during the labor certification process. However, if you do not work for the employer during the immigration process, you must work for the employer for a reasonable period of time after you receive the permanent residency.

Alternatively, if you have been working for 180 days after filing your I-485 and after your I-140 is approved, you may change employer and take a similar position and it will not impact your I-485 process. Note that whether the positions are similar enough is subject to a certain legal standard. We recommend that you consult with experienced attorneys, like those at Z&A, prior to changing jobs in these circumstances. That way, you can make sure that your new position is similar enough to your old one so as not to affect your pending application.

Q: The company currently hiring me has not made any profit for the past two years. Can the company still apply for a PERM application for me?

A: It depends. One way to prove ability to pay the Prevailing Wage is by demonstrating that the petitioner’s current net assets are equal to or greater than the offered salary from the date of submission of the PERM labor certification application. Or, if you are currently being paid a salary equal to or higher than the prevailing wage, starting with the date of submission of the PERM application, USCIS will most likely find that the employer has met the ability to pay requirement.

Q: My employer is a sole proprietor and I am in H-1B status working for him. Currently, he is paying me less than the Prevailing Wage set for the labor certification application, but it meets the Prevailing Wage set for the H-1B. Is he required to prove that he has the ability to pay for the Prevailing Wage Determination for the PERM labor certification?

A: Yes. Although an employer is not required to pay the proffered wage until the permanent residency is granted, the employer must have the ability to pay the proffered wage, starting with the date the labor certification application is filed. If he has not paid the Prevailing Wage set for the labor certification, he must produce evidence at time the application is filed to demonstrate his ability to pay the Prevailing Wage.

Q: When does the employer have to pay the offered salary to the alien employee?

A: Because the PERM LC and immigration visa petition is filed for a prospective job, the latest time the employer has to pay the alien the offered salary (equal or higher than the Prevailing Wage) is when the alien receives permanent residency (the Green Card). However, the employer has to demonstrate the ability to pay the offered salary throughout the whole PERM LC process as well as throughout the I-140/485 process until the alien receives Green Card.

Q: How does employer to demonstrate the ability to pay the proffered salary?

A: The employer can demonstrate its ability to pay by using either of the following:

• If the alien employee was already employed by the employer, the alien’s actual paid salary is equal to or greater than the proffered salary in the labor certification during the entire process; or,
• If the alien is not employed with the employer throughout the entire process; OR the alien’s salary is lower than the proffered wage in the labor certification application, then the employer must demonstrate:
  • The employer’s net assets are in excess of the proffered salary in the labor certification petition; or,
  • The employer’s net profit is in excess of the proffered salary in the labor certification petition.

Q: What if the company fails to prove its ability to pay the prevailing wage?

A: Failure to produce evidence of ability to pay the Prevailing Wage at time the labor certification application is filed may result in a denial of the later filed immigration petition. Usually, in the labor certification processing, the Department of Labor usually does not check the ability to pay issue. However, during the I-140 processing, the USCIS confirms ability to pay carefully, back tracking to the date the labor certification application was filed. Also, the burden of proof rests solely on the petitioner, so the employer must be prepared with evidence.

Q: What is the Prevailing Wage in a PERM labor certification?

A: The Prevailing Wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.

Q: Which government agency determines the Prevailing Wage in the PERM labor certification process?

A: Effective January 4, 2010, the Prevailing Wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). The SWA will no longer be involved in determining the Prevailing Wage for PERM applications.

Q: How can I obtain a Prevailing Wage?

A: Effective January 4, 2010, the Prevailing Wage rate is usually obtained by submitting ETA Form 9141 to the National Prevailing Wage and Helpdesk Center (NPWHC) in Washington D.C., or, in limited circumstances, by accessing other alternative legitimate wage survey data. The NPWHC generally relies on the most common wage survey, which is also known as Occupational Employment Statistics (OES) Survey.

Prevailing Wage requests submitted to the NPWHC should include the job title, job description, area of intended employment, and the requirements for the job (i.e., education level, years of experience, and any other special requirements). NPWHC responds with the wage for those similarly employed in the same geographic area, and indicates the wage survey used to determine the wage. It also provides the wage level.

Q: How long is a Prevailing Wage Determination (PWD) valid?

A: The National Prevailing Wage and Helpdesk Center (NPWHC) has specified the limited validity period of the Prevailing Wage, and it is always not less than 90 days or more than 1 year from the determination date. Labor certification applications must be filed while the Prevailing Wage determination is still valid.

Q: What happens if the NPWHC determines a prevailing wage higher than what the employer is willing to pay?

A: If the wage issued by NPWHC is higher than what the employer is willing to pay, it is possible to look at alternative classifications, where the average wage is lower. DOL policy on combination of occupations cases is to assign the highest Prevailing Wage that applies.

Alternatively, the employer can file a report from another wage data source with a request that it be used instead of the PWD with the labor certification application. The DOL is not bound by this. If the DOL denies the request, the employer has a right to appeal to the Board of Alien Labor Certification Appeals (BALCA). The requests for PWD review by the BALCA must be in writing and must be made no more than 30 days after determination.

The employer can alternatively file a new PWD request with the NPWHC and use the new PWD instead.

Q: What will happen if my employer does not promise to pay the Prevailing Wage?

A: Communicate to your employer that this promise is legally binding and must be honored when you obtain your green card.

Q: What is the minimum salary requirement for the labor certification application?

A: It depends. Each job position has a different Prevailing Wage rate depending on the location of the job position.

Q: What are the mandatory advertisement requirements for PERM labor certification?

A: PERM regulations require at least two Sunday postings in a newspaper of general (commonly read) circulation, plus one 30-day job order with the State Workforce Agency. Alternatively, regulations allow the employer, during recruitment for a professional position that requires experience and an advanced degree, and a professional would normally be the person to fill the position, to advertise in one Sunday edition of a newspaper of general circulation AND one print professional journal related to the profession, instead of two separate Sunday postings.

The newspaper must be one that is most likely to attract applicants. If a newspaper of general circulation in a rural area does not have a Sunday edition and the job is to be performed in that rural area, then the day of the week that has the widest newspaper circulation may be substituted for Sunday. For example, in a rural area where a job is to be performed, the newspaper only publishes on Monday and Wednesday. More people buy the Monday edition of the newspaper than the Wednesday edition. The employer would advertise the job in two separate Monday editions of the newspaper.

Q: How long is the PERM recruitment period?

A: There is no mandatory set length of time the recruitment period should last, so long as the recruitment activities meet the substantive requirements. According to the regulations, recruitment activities must be concluded at least 30 days prior to filing, and must have begun no earlier than 180 days prior to filing. One of the three additional steps required for recruitment for professional occupations may take place within 30 days prior to the submission of the PERM application. However, none of the recruitment activities may take place more than 180 days prior to filing the application. Technically, an employer may complete all recruitment activities within 30 days. This is because the job order has a mandatory 30-day posting period. All other recruitment activities may be conducted concurrently during this time. If recruitment then takes only 30 days, the employer need only wait another 30 days to submit the application, for a total of 60 days from first recruitment activity to filing.

Q: What information should be included in the job advertisement?

A: The newspaper advertisements for both professional and nonprofessional occupations must include the exact job description and minimum job requirements, as it appears in the ETA Form 9089. It must also include the name of the employer, and indicate that applicants should submit resumes to the employer and provide an address, a general description of the job, description of the geographic area where the job is to be performed, not include any job requirements other than those listed on ETA Form 9089, and cannot contain wages or terms that are less favorable than those offered to the alien.

Q: Do I need to include the wage rate in the advertisement?

A: No, the wage that will be paid to the employee does not need to be included. If it is included, if cannot be lower than the Prevailing Wage rate.

Q: How important are the job description and minimum job requirements to the labor certification process?

A: The job description and minimum job requirements are key issues in the labor certification process. A carefully drafted job description and requirements determine the pool of potential job applicants responding to the job advertisement. In addition, it determines whether the position will meet the technical requirements for a successful PERM application.

However, unreasonable minimum job requirements or requirements that are tailored to the specific alien beneficiary’s qualifications are not allowed and will likely prompt an audit by the Certifying Officer (CO).

Q: Can my employer restrict the job requirements to specifically fit my credentials but make most potential job applicants unqualified?

A: The job requirements cannot be unduly restrictive. In general, a job is not considered unduly restrictive when the job requirements: a) are those normally required for the job in the U.S.; b) are those defined as part of the job in the Dictionary of Occupational Titles; and c) do not contain a language requirement other than English. All three conditions must be fulfilled for a job not to be considered unduly restrictive. This is one of the critical issues in the labor certification application and only a very experienced attorney can make the determination as to whether the conditions are fulfilled.

Q: Must foreign language skills be totally eliminated from job requirements?

A: No. Although as a general rule, requiring the applicant to speak a language other than English is considered unduly restrictive and will likely trigger an audit, an important exception applies: the business necessity exception. The language requirement will be acceptable if it is considered a business necessity. Business necessity might exist if the position directly requires language performance, such as a Chinese language teacher. Business necessity can be established here: that a Chinese language teacher must speak Chinese in addition to English in order to perform the job.

Q: What is business necessity?

A: Basically, business necessity means that a job requirement must bear a reasonable relationship to the occupation in the context of the employer’s business, and is essential to fulfilling the reasonable job duties as described by the employer. The DOL has a JobZone code to determine the general required qualifications for the job that is the subject of the application. If the required qualifications in the application exceed the JobZone code, it may trigger the DOL to audit the application and the employer may then be required to demonstrate the business necessity.

Q: I am working in a small company as a programmer. All of my co-workers speak Mandarin in the workplace. Can my employer require Mandarin Chinese as a business necessity?

A: Probably not. The key point to determine business necessity is whether a requirement is reasonably necessary to perform the job duties. Although it may be convenient to communicate in Mandarin in a workplace where all of your co-workers speak Mandarin, such language is not reasonably necessary to perform your duty as a computer programmer. Of course, business necessity would be more likely established if your job duty is writing Chinese software programs.

Q: I operate a travel agency and over half of our clients speak Chinese only. Now I need to recruit an agent. Can I require language as business necessity?

A: Maybe. Under this circumstance, you must provide evidence that the foreign language skill is necessary to communicate with clients, customers or contractors. In practice, however, it is hard to challenge this standards.

Q: Who will draft the advertisement’s contents?

A: If Zhang & Associates, PC is hired to handle the labor certification application, the highly experienced PERM attorney at our firm always prepares the job advertisement to ensure that it meets all requirements.

Q: What happens once the advertisements are placed?

A: Once the advertisements are placed, if the employer receives resumes, the employer is obligated to contact each applicant who appears to minimally qualify for the position. Applicants may only be disqualified for lawful reasons (such as that he or she does not have the required level of education or the required years of experience).

Q: How much does it cost to place the job advertisements in newspapers?

A: The costs to place a job advertisement in newspapers varies from a few hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisements are placed. A job posting in a large metropolitan area will generally cost more than a job posting in a rural locale.

Q: How do I select the newspaper for the job advertisements?

A: The job advertisements need to be placed in a local newspaper where the job is to be performed. The newspaper should be one of general circulation (common and widespread circulation, not specific to any one audience) with substantial amount of subscribers. The attorney will make arrangements for the advertisement with the appropriate media that is accepted by the DOL. If you hire our firm, our firm will arrange the newspaper posting and external posting for you so that it reduces the work of the employer and expedites the process. We make such arrangements though a nationwide media company who has expertise in selecting DOL accepted newspapers and we also receive a discounted rate.

Q: Does Zhang & Associates handle the placing of the job advertisement for its clients?

A: Yes, our firm makes arrangements to have client advertisements handled through an advertising agent. Generally, an advertising agent can obtain a better price than the rate quoted by newspapers to the general public.

Q: Do I have to advertise in the Sunday edition?

A: Yes, urban and suburban areas must place their advertisements in the Sunday edition of the newspaper. If rural areas do not have Sunday editions, they are allowed to use the newspaper edition with the widest circulation.

Q: What is a professional position?

A: In general, a position that requires a minimum of a Bachelor’s degree or higher is considered a professional position. For example, a Software Engineer position that requires a minimum of a Bachelor’s degree will be categorized as a professional position; therefore, the minimum recruitment activities, plus the additional recruitment activities, are required. However, a Chinese cook position that generally requires only two years of experience but no degree is considered to be a non-professional position, and additional recruitment activities other than the minimum mandatory recruitment activities are not required.

Q: What if the position is for a worker with an advanced degree, do I still have to post in the Sunday edition of the newspaper?

A: Yes. If the position is for a job to be filled by someone with an advanced degree and experience, and is one that would normally be filled by a professional, you must still place an advertisement in at least ONE Sunday edition of a newspaper of general circulation, but you may choose to place the second advertisement in a professional journal.

Q: Are additional recruitment steps required for professional positions?

A: Yes. For professional positions, the regulations require that the employer conduct other recruitment activities in addition to the basic mandatory advertisements. For professional positions, the employer must advertise or recruit at or using any three of the following:

• Job fairs;
• Employer’s website;
• Job search website other than employer’s;
• On-campus recruiting;
• Trade or professional organizations;
• Private employment firms;
• An employee referral program, if it includes identifiable incentives;
• A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
• Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
• Radio and television advertisements.

Q: Can placing three advertisements on different websites or three advertisements on television fulfill the additional recruitment steps?

A: No. The advertisements must be placed in three different mediums as specified in the list provided by the regulations shown above. They cannot all be in the same media. If an employer places three postings with the same type of media, say, three job search websites, it will be considered to be only one posting activity, and the employer will still have to satisfy two other criteria.

Q: Is there a valid period of time for the advertisements and recruitment activities to occur?

A: Yes. All mandatory advertisements, job orders, internal postings, and additional recruitment activities must occur within 180 days of the filing date, but no closer than 30 days prior to the date of the filing. A single exception is allowed: one of the three additional recruitment activities required for professional occupations may occur within 30 days before the date of filing.

Q: What is a Job Order?

A: A Job Order is an advertisement for a job placed with the State Workforce Agency (SWA). For purposes of PERM, the Job Order must run for a minimum of 30 days and the 30-day job order timeframe must end at least 30 days prior to filing. However, the employer is not limited to the 30-day timeframe, and may choose to post the job order for a longer period.

Q: What is an Internal Job Posting?

A: It is a job advertisement that is posted internally and conspicuously at the employer’s premises for at least ten (10) business days during the job recruitment campaign to provide notice of the current opening to the company’s employees, and also indicate that a foreign labor certification application may be filed by the employer, and include information for reporting violations to the DOL. The internal job posting must follow a special format and include specific wording, as indicated by law. A Z&A attorney can draft an internal job posting for its clients.

Q: Does the employer need to provide notice of the filing to a bargaining representative?

A: Yes. If the offered position is a union position, the bargaining representatives of the employees in the same occupational classification for which the application is being filed must be given notice. If there are no bargaining representatives, then an Internal Job Posting must be made.

Q: Has the PERM labor certification process expanded the Internal Job Posting requirement?

A: Yes. The employer must now publish the internal job posting in any and all in-house media, whether electronic or printed, that is usually used by the employer for posting such a notice for recruitment of similar positions.

Q: How long does the Notice of Filing have to be posted?

A: The Notice of Filing may be posted indefinitely, but must be posted for at least 10 consecutive business days, and those 10 days must fall between the 30 to 180 day period prior to filing the application.

Q: What must be included on the Notice of Filing?

A: The Notice of Filing must comply with the DOL requirements and must include the wage offered, and job description, working hours, contact person’s name and address, and other mandatory elements, such as where to report violations of the foreign labor certification process. The DOL has very strict requirements for the internal job postings. Any mistake or error in this posting may result in the denial of the case.

Q: What is the employer required to do during the job recruitment process?

A: Generally, the employer needs to maintain documentation of all resumes received: both qualified and unqualified, for the recruitment report. The employer should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep records to explain why any applicants were deemed unqualified. Z&A can help review the resumes and provide assistance on how to deal with a particular situation.

Q: What is the Recruitment Report?

A: The recruitment report is a statement detailing the recruitment activities, applications, interviews, and the decisions concerning all applications. There are several specific required items in the report according to the PERM regulations. Although the report is not required to be submitted with the initial PERM LC application, the PERM regulations require the employer to sign the recruitment report prior to filing the application. Further, the employer should submit the recruitment report and other documents to the DOL within 30 days upon the DOL’s request, in the event the case is selected for auditing.

Q: How soon can the employer submit a PERM application from the date of first recruitment?

A: Technically, the employer may submit a PERM application 60 days from the date of first recruitment. As explained above, the employer may complete all required recruitment activities in 30 days. There is a 30-day waiting period from the date of completion of the mandatory posting and the two optional postings prior to the submission of the PERM. This period is required so that the employer may screen and interview the potential candidates.

Q: What will happen if another company merges with the employer-company after my PERM labor certification is approved?

A: If the new company accepts all benefits and liabilities of the employer-company (a successor in interests), the new company may continue your green card process.

Q: What will happen if I change jobs while my PERM labor certification application is in process or after it has been approved, and while my I-140 immigrant visa petition is pending?

A: Changing jobs will not affect your labor certification process if your sponsoring employer agrees to continue the PERM labor certification petition and immigrant visa petition on your behalf, so long as you are going to return to the sponsoring employer once you obtain your green card or an immigrant visa. However, in the real world, most employers will withdraw or discontinue the immigration process if you leave the company.

Example: 
Li works for Company H and Company H files a PERM labor certification application for Li. Li found another attractive position at Company M at a location that is closer to his family. He negotiated with Company H that he is going to continue his green card process and Li will return to work for Company H when his green card is approved. In such a situation, Li may continue his green card process with Company H and his change of employer does not impact the green card process.

Q: May two or more companies file PERM labor certification applications for one alien worker at the same time?

A: Yes. The labor certification application concerns a job offer by an employer that cannot be filled, so the focus of the process is the employer and the job position.

Q: Can one company file two PERM labor certification applications for the same employee for two different positions?

A: No. Under the current DOL practice, one employer cannot file two PERM applications for the same alien. Even though it is legally possible that an employer files two labor certification applications for two different positions for the same alien, the current PERM filing system does not allow such a filing.

Q: Can I file a PERM labor certification while I have a labor certification pending at the Backlog Center?

A: Yes. You may file a new PERM labor certification, even if it is by the same employer and you have a labor certification pending at the backlog center. The PERM filing can be for the same position as your previous case or it can be for a new position. Filing of the PERM labor certification does not impact your previous pending case.

Q: I have already filed an immigration petition under the NIW, EB-1a or EB-1b categories. Can my employer still file a PERM labor certification application on my behalf?

A: Yes. Your employer may file a PERM labor certification for you even if you are a beneficiary of another pending or approved immigration petition. Filing a PERM is an extra benefit to you.

Example: 
Joon is a beneficiary of a pending family-based immigration petition. Joon may have his prospective employer, Company U, file a labor certification application on his behalf, as well, which may increase his chances for being the beneficiary of an approved petition, which he can later use to file for his green card.

Example: 
Ann filed an employment based immigration petition through a National Interest Waiver (self-petition). Ann’s employer may still file a PERM labor certification application on her behalf as well. This may increase her chances for obtaining a green card.

Example: 
Tony is currently an F-1 student. Tony’s prospective employer, Company W, may file a PERM labor certification on his behalf. In general, the labor certification filing is not considered an expression of immigrant intent, and thus should not affect his F-1 visa status/renewal. However, after an I-140 immigrant petition is filed for him, his F status and renewal may be impacted or denied.

Example: 
Lana’s National Interest Waiver (NIW) and I-140 petition have been approved, but she has recently made a career change. Lana’s Adjustment of Status (I-485) application, based on her NIW and I-140, is still pending. She is worried that her Adjustment of Status may be denied due to the fact that she is in a new line of work. Lana may have her prospective employer, Company ABC, file a PERM application on her behalf. Lana may then apply for her green card through the PERM labor certification process and does not need to worry about the potential denial of her currently pending I-485.

Q: What happens to my PERM labor certification case if my Employer-Petitioner goes out of business?

A: Your PERM labor certification application will be denied. Even if the DOL approves it without notice of the winding-up of the business, you will not be able to continue the I-140 petition without sponsorship from the company.

Q: May I leave the U.S. while my PERM labor certification application is pending?

A: You may leave the U.S. while your PERM application is pending. However, filing the PERM labor certification application will not in any way aid in your reentry to the United States. You should secure a visa for reentry and resolve all related issues. Please consult a competent attorney to discuss and resolve all issues that could impact your reentry prior to your departure.

Q: Will the PERM labor certification application affect my non-immigrant visa application?

A: A submitted or approved labor certification application will most likely NOT impact your non-immigrant visa application. The current non-immigrant visa application form does not require disclosure of the labor certification application. However, if you are the beneficiary of a pending or approved I-140 immigrant petition, which is usually filed after receiving a PERM approval, your I-140 will impact your eligibility to secure a non-immigrant visa, except for the L and H nonimmigrant visa categories.

Q: My spouse’s employer has filed a PERM labor certification application on his behalf. Should I still ask my employer file a PERM labor certification application on my behalf, as well?

A: Yes. Filing two labor certification applications may increase your chances of approval, and also potentially the speed with which you obtain a green card.

Q: Can I withdraw an application if it is selected to be audited?

A: No. If the application is selected for an audit, the employer cannot withdraw the application and must face any consequences of the audit.

Q: My labor certification has been approved. What factors may prevent me from obtaining a Green Card?

A: If your labor certification has been approved, you are well on your way to obtaining a green card. Potential risk factors may include your company’s inability to pay and a criminal record, if any.

Q: What is the difference between EB-2 and EB-3?

A: EB-2 refers to the 2nd preference of employment-based immigration petitions. A position that requires a minimum of a master’s degree or a bachelor’s degree plus five years of experience may qualify for an EB-2 category. A position that requires at minimum a bachelor’s degree or two years of experience falls in the EB-3 category. In adjustment of status or consular processing, EB-2 and EB-3 visa availability may be different. As of June 2006, EB-3 has around a five year backlog of visa availability while EB-2 visas are currently available for all areas except Mainland China and India.

Q: What is the visa availability?

A: In the U.S. employment-based immigration petition system, each immigrant category has a certain quota of visas for each country on an annual basis. If a visa number in one category for a certain country has been used up, aliens born in that country may have to wait for visa availability. Please visit our Visa Bulletin for most updated visa information.

Q: How do I estimate the waiting period for a visa quota?

A: The time between your priority date and the cut-off date issued by the Department of State is generally the period of time that you have to wait before you are able to file adjustment of status or consular processing.

Q: What is my priority date?

A: When filing a labor certification application, your priority date is the date when the PERM application is received by the DOL.

Q: What is the cut-off date?

A: The cut-off date is a date issued by the Department of State each month in accordance with visa availability. Applications with priority dates that fall before the cut-off date should have immigrant visas available to them that they can apply for.

Example:
Mr. Wang is Chinese and is also a beneficiary of a PERM labor certification application that was filed in March 28, 2006. The position requires a bachelor’s degree, and so his category is EB-3. So, Mr. Wang’s priority date is March 28, 2006, the day the PERM application was filed online and received by the DOL. Let’s assume that the PERM application was approved on May 28, 2006. In May, the DOL published cut-off date that shows that the EB-3 category for a Chinese born alien is 01/01/2001. Therefore, Mr. Wang will not able to filehis I-485 application yet because his priority date is after the cut-off date. However, his employer may still file the I-140 for him. Mr. Wang cannot file his I-485 application for a green card until the DOS publishes cut-off date that falls after March 28, 2006.

Q: If I retain Zhang & Associates, P.C for the PERM application, what will the attorneys do?

A: Our attorneys will do most of the work, including the following:

• Attorney will collect relevant information and documents about the sponsoring employer and the alien beneficiary;
• Attorney will review and analyze your qualifications and your (potential) job requirements including issues relating to your degree, the job duties, etc. If a foreign degree evaluation or foreign educational equivalent is required, we will advise the client accordingly;
• Attorney will draft the job description and design the qualifications based on the information provided by the employer and the alien beneficiary;
• Attorney will discuss the job descriptions and qualification requirements with the alien-beneficiary;
• Attorney will work with the employer to revise and finalize the job descriptions and qualification requirements;
• Attorney will help the employer to register on the PERM online filing system;
• Attorney will submit the necessary information to obtain a Prevailing Wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC);
• Attorney will advise the employer on legal procedures applicable to the job recruitment process according to the DOL’s rules and guidelines;
• Attorney will draft a job posting and propose advertising and posting schedules for the employer’s review and approval;
• Attorney will arrange newspaper advertisements, job orders (if state allows), and all external postings upon receiving the employer’s and alien’s consent as to the content of the advertisement and posting;
• Attorney will arrange the job posting via an advertisement agent;
• Attorney will work with the employer on arranging other applicable recruitment activities. For example, if the job opening is to be posted on the employer’s website, the attorney will prepare the content and give it to the employer for posting. The attorney can also refer a recruiting firm to the employer for recruitment purposes. Recruiting through a recruiting firm is one of the qualified additional recruitment activities;
• Attorney will offer legal guidelines to the employer on screening and interviewing applicants;
• Attorney will co-ordinate the recruitment with the employer, work with the employer on analyzing the job applications that are received, and provide a professional opinion on responding to those inquires;
• Attorney will offer convenient forms for the employer to use to document the entire recruitment process and will also prepare an entire set of documents that are ready for auditing in the case of an audit;
• Attorney will review all the recruitment information collected from the employer and draft the recruitment report on behalf of the employer;
• Attorney will prepare the online PERM application form and provide a copy to the employer and the alien beneficiary for review before filing;
• Attorney will submit the online PERM petition upon approval from the employer and the beneficiary;
• Attorney will document the entire process and prepare an entire set of documents ready for auditing;
• If the DOL chooses to audit the application, the attorney will work with the employer to respond to any DOL auditing request;
• Attorney will communicate with the DOL afterwards regarding any legal issues and respond to any requests for additional evidence on your case

Q: Who will handle my case if I retain Z&A for a PERM labor certification?

A: Experienced attorneys at Z&A will handle their clients’ cases individually by analyzing job openings and the aliens’ qualifications, preparing job descriptions by communicating with the sponsoring employer and alien employee, obtaining Prevailing Wage determinations, designing advertisement strategies, arranging advertisements and internal job postings, offering employers assistance in the recruitment process, collecting documents and additional information, preparing recruitment reports, preparing documentation for future auditing purposes, and filing and following up with the government agency for pending cases. In the event of auditing by the DOL, the attorney will carefully prepare documents and respond in a timely fashion to the DOL. Please note that only experienced attorneys, not clerks or paralegals, handle your case at Z&A. Our clerks’ main objective is to help attorneys in administrative and follow up work. Not only will each client’s PERM labor certification be prepared by an individual attorney, it will also be reviewed by one of our most experienced attorneys for final checking before submission of the application.

Q: I am living in California, but your office is headquartered in Houston, Texas. Could you handle my labor certification case?

A: Yes. Our firm is headquartered in Houston, TX, and has offices in New York City, Los Angeles, CA, Silicon Valley, CA, Chicago, IL, and Austin, TX. We handle PERM labor certification cases for clients located throughout the U.S. by using the latest technology designed for providing the best professional services. Immigration is regulated under federal law, so we can practice in all states in the U.S. Please click our client map to see our clients’ locations throughout the United States.

PERM labor certification is extremely complicated procedure. We recommend that you consult with an experienced and responsible immigration attorney. In Z&A, our experienced attorneys have been closely following and studying the changes and development of PERM process. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by email us at[email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure high quality service.

[solman]

PERM Labor Certification

Program Electronic Review Management (PERM) is the system used for obtaining labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (“green card”). This is also known as PERM labor certification. The employment-based preference categories that require PERM labor certification are EB-2 (other than a National Interest Waiver) and EB-3. Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS) in most EB-2 and EB-3 positions, the employer must first obtain an approved labor certification from the Department of Labor (DOL). An application for labor certification is submitted to the DOL by using ETA Form 9089. The DOL must certify to the USCIS both that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job offered the alien at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market before filing the application. If sufficient able, qualified, and willing applicants (U.S. citizen or Permanent Resident) are not found for a position through the recruitment process, the employer can submit a PERM labor certification application.

Under PERM regulations, employers have the option of submitting the labor certification application, electronically or by mail, directly to the DOL for adjudication. No supporting documents are submitted at the time of filing. However, the petitioning employer must conduct all required recruitment activities, and have all supporting documents ready prior to filing. Recruitment documents (such as website printouts, newspaper tear sheets, job orders, etc.) should be saved by a petitioner for 5 years to ensure compliance with a potential audit or review. According to the DOL, an electronically filed PERM labor certification application was originally expected to be adjudicated in around 45-60 days unless the case was audited. The current processing time for unaudited PERM applications is closer to 90 days. If the case is selected by the DOL for auditing, the petitioning employer should submit all requested documents to the DOL within 30 days. If the employer does not respond to the audit request, the case is deemed abandoned and the employer may be required to conduct “supervised recruitment” for any future labor certification. 

After the labor certification is approved by the DOL, an Immigrant Petition related to the labor certification should be filed with the USCIS before the expiration of the labor certification. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period. 

PERM took effect on March 28, 2005 and all labor certifications submitted after March 28, 2005 must be filed using the PERM process. Since March 28, 2005 traditional labor certification (ETA Form 750) and Reduction in Recruiting (RIR) have NO LONGER been applicable to new filings. 

The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2 and is not required for any EB-1, EB-4, or EB-5 petitions. For more information about NIWs, please click here. For more information about EB-1, please click here. 

Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We havesuccessfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at [email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service. 

 

[solman]

Who needs a Labor Certification

PERM Labor Certification is the first step in filing many employment-based petitions, including immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and petitions for professionals with a bachelor's degree, skilled workers, and unskilled workers (EB-3). 

Immigration petitions in the following categories DO require a Labor Certification:

• Second Preference Employment-Based Immigration petitions (EB-2) excluding National Interest Waivers (NIW)
• Third Preference Employment-Based Immigration petitions (EB-3)

Immigration petitions in the following categories do NOT require a Labor Certification:

• All Family-Based immigration petitions
• Aliens with Extraordinary Abilities, Outstanding Researchers/Professors, and Intra-Company Transferees for Multi-National Executives (EB-1)
• National Interest Waivers (EB-2)
• Special Immigrants, including religious workers (EB-4)
• Investors (EB-5)
• Schedule A Occupations

Certain occupations are recognized and identified by the DOL as not having sufficient U.S. workers. Such occupations are labeled “Schedule A” for labor certification purposes. These occupations are "pre-certified," or certified in advance. Thus, they do not have to undergo the labor certification process to determine whether U.S. workers are available. An ETA form 9089 must be filled out and submitted to the Department of Homeland security for these positions even though they are “pre-certified.” Schedule A is divided into two groups:

Group I

• 1. Physical Therapists
  2. Professional Nurses

Group II

• 3. Sciences or arts
  4. Performing arts

PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at[email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service. 

 

[solman]

General Procedure for Filing a Labor Certification Application

PERM labor certification is an extremely complicated process. It involves a thorough review of the alien beneficiary’s qualifications, the position offered, the employment setting, the wording of the job requirements, the detailed arrangement and follow-up of recruitment schedules, the employer’s compliance with recruitment procedures, and the proper documentation and technical information in the forms. The general process for filing a PERM labor certification is described below:

1. Employer agrees to sponsor the alien beneficiary for PERM Labor Certification;

2. Employer retains an immigration attorney for filing PERM Labor Certification, and establishes Attorney-Client Relationship;

3. Attorney collects information needed for labor certification, including detailed job description, petitioning employer information and alien beneficiary’s qualifications and work experience;

4. Employer registers on the PERM online filing system following attorney’s instruction and assigns a sub-account to the attorney;

5. Attorney communicates with the employer and alien beneficiary and designs job descriptions and determines the requirements for the position based on this communication;

6. Attorney obtains prevailing wage determination from the National Prevailing Wage Center (NPWC);

7. Attorney designs the job recruitment advertisements including job title, job duties and job descriptions;

8. With assistance from the attorney, the employer will arrange the recruitment schedule and advertise the job posting with the proper internal and external media in accordance with the DOL provisions;

9. Recruitment activities must be completed within 30-180 days before submitting the application (employer should document all recruitment activities);

10. Employer screens and reviews US workers’ job applications, and conducts phone or on-site interviews if any applicant meets the minimum job requirements;

11. If sufficient qualified US workers are not found for the position, the employer is eligible to submit the PERM application;

12. Attorney works on the recruitment reports based on the recruitment documents provided by the employer;

13. Attorney prepares the online PERM application and provides a copy to the employer and the alien beneficiary for review before filing;

14. Attorney submits the online PERM Labor Certification Application upon approval from the employer and the beneficiary. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date;

15. Attorney receives an e-mail from the DOL confirming the PERM Labor Certification has been received and submitted for processing;

16. If the DOL agrees that the employer conducted the required recruitment and found no qualified and available U.S. workers for the position, the DOL usually certifies (approves) the PERM Labor Certification within 45-90 days from the date of filing, although some cases may be approved in just a couple of days;

17. Cases may be audited if the DOL finds the labor certification application suspicious or selects it for random checking. If the DOL chooses to audit the application, the employer should submit the required documents to the DOL within 30 days. If the employer fails to submit documents within 30 days, the DOL will not only deny the specific application but may also require future applications from the same employer to go through a supervised advertising and posting process. After reviewing the employer’s documents submitted in an audited case, the DOL may certify the labor certification petition, deny the petition, or ask the employer to go through the supervised recruitment process.

PERM labor certification is an extremely complicated and time-sensitive. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at [email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.

 

[solman]

Requirements for PERM Labor Certification

The PERM Labor Certification application imposes specific requirements (listed below) both on the employer and the prospective employee. The employer must comply with the PERM process requirements and adhere to the PERM Regulation. 

Employer Requirements 

The employer who files the application on behalf of the alien must attest to the following:

• The position should be a full-time job offer located within the U.S.;
• The position should be a bona fide job offer available to U.S. workers;
• Job requirements should not be tailored to the alien worker’s qualifications. In other words, the employer must establish that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity;
• The offered wage must meet prevailing wage requirements. The wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment, as the 5% deviation is no longer acceptable;
• There are no qualified U.S. workers able, willing, qualified and available to accept the job offer through the specific recruitment processes; and
• Employment of the alien will not adversely affect the wages and working conditions of U.S. workers.

Prospective Employee Requirements 

The prospective employee who benefits from the application must attest to the following:

• He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed;
• He/she maintains a valid U.S. status if living within the U.S.

To promote startup enterprises, reduce barriers and accelerate growth for job-creating entrepreneurs, since 2011 the USCIS has allowed foreign entrepreneurs to apply for labor certification under EB-2 if they satisfy the existing requirements. 

In Labor Certification, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Although not explicitly permitted in the regulations, the DOL and the USCIS informally allow sponsoring employers to apply for Labor Certification and file an Immigration Petition on the basis of prospective employment. In other words, it does not matter whether the alien works for the sponsoring employer during the application process or after it is approved. Meanwhile, the sponsoring employer does not necessarily have to continue to employ the alien. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency. 

Effective July 16, 2007, the employers must pay all the costs of preparing, filing and obtaining labor certification, including recruitment and attorney’s fees. The employers are no longer permitted to transfer the costs incurred in the labor certification process to the alien. The DOL rules state that an employer is prohibited from receiving payment of any kind as an incentive or inducement to file, or as reimbursement for the costs of preparation or filing of an application for labor certification. This includes the employer’s attorney’s fees. An employer also cannot recoup the costs by deducting those amounts from the alien’s wages, salary or benefits. In other words, the employer and alien must each pay their own attorney’s fees, and the alien is not allowed to pay the employer’s portion of those attorney fees. 

PERM labor certification is an extremely complicated procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at [email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service. 

 

[solman]

Advertising and Recruitment Requirements

Prior to filing the permanent labor certification application, the employer must conduct recruitment of U.S. workers for the job being offered. Recruitment is a cumbersome process and very time and process specific and advertising requirements may change based on the type of job being offered. We highly recommend you retain qualified PERM attorneys to help you with your recruitment. Incorrect recruitment can result in the denial of a labor certification application. 

For purposes of recruitment, most jobs can generally be categorized as professional or non-professional occupations. Professional occupations generally require at minimum a Bachelor’s degree. There aresome jobs that the DOL insists are professional occupations, and thus, the recruitment must conform to the professional occupation standards. The recruitment process will vary depending on whether the occupation is professional or non-professional. All petitioning employers (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest to having conducted the recruitment prior to filing the application. Petitioning employers using the regular PERM process must conduct recruitment no more than 180 days but no less than 30 days prior to the date of submitting the PERM application.

The following mandatory recruitment activities are required for all applications involving professional and non-professional occupations which are not filed for Schedule A positions or Special Handling:

1. Job Order

The employer must place a job order with the local SWA for a period of 30 days. While the start and end dates of the job order entered on the application will serve as documentation of this step, it is still advisable to maintain dated printouts from the SWA’s job posting website as part of an employer’s PERM documents.

2. Advertisements in Newspaper or Professional Journals

The employer must place an advertisement in a newspaper of general circulation on two different Sundays. If the job offer requires experience and an advanced degree, the employer may place an advertisement in an appropriate national professional journal in lieu of one of the Sunday advertisements. 

If the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in that area. This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

3. In-House Posting

The employer must post an internal job posting (also called a notice of filing) with all DOL required information for a period of 10 consecutive business days. If the position is a union position, the employer must give proper notice to the bargaining representative. The notice of filing must contain the same information as the advertisement content. The internal job posting must list the wage offered for a position filed under the regular PERM process (even if this information is not in the advertisements). An internal job posting must 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; state that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; and provide the address of the appropriate Certifying Officer.

If the position offered is a professional position (all EB-2 cases and most EB-3 cases that require a degree), the PERM regulation requires the employer to post the job in at least three of the following forums during the recruitment period mentioned above (except one activity may be within 30 days prior to the date of submission):

1. Job fairs;
2. Employer’s web site;
3. Job search web site other than employer’s;
4. On-campus recruiting (usually for positions requiring no experience);
5. Trade or professional organizations;
6. Private employment firms;
7. An employee referral program, if it includes identifiable incentives;
8. A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
9. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
10. Radio and television advertisements

The job advertisement does not need to include every single minute detail about the job duties. However, it must be thorough, and include the following information: name of the employer, address where applicants should send resumes to the employer, employer contact information, and a description of the job with enough details that it is clear what the job is for. A wage is not required to be listed in advertisements for PERM, but if it is then the listed wage may not be lower than the Prevailing Wage Determination. Advertisements must not contain additional job requirements not normally required for the position (unless there is a demonstrated business need) and cannot contain wages or terms of employment that are less favorable than those being offered to the alien beneficiary. 

Once the job has been advertised, the employer must interview U.S. worker applicants that have met the minimum requirements for the position. If the employer rejects U.S. workers that meet the minimum qualifications, he must document why in his recruitment report. The employer must have a lawful, job-related reason for rejecting a minimally qualified U.S. worker, and include that reason in the recruitment report. 

Recruitment must be performed during the 180 days prior to filing the labor certification application, but must also be completed 30 days before filing the application. If the PERM is filed for a professional position that must perform 3 additional recruitment steps then ONE of these additional steps may take place less than 30 days before submitting the application. The counting of days is strictly defined by the U.S. Code of Federal Regulations. For the DOL’s FAQ regarding timeline guidance, please click here. We highly recommend you consult with an experienced attorney, such as Z&A, prior to conducting recruitment. Errors in recruitment cannot be cured after the labor certification application has been filed.

The requirements for different postings vary as the DOL has developed a very complicated practice during years of the Labor Certification Process. Though the supporting documents are not submitted at the time of online filing, the employer must keep a full set of recruitment documentation for at least five years from the date of submission. The DOL may begin an audit and investigation at any time during this 5 year period. 

Please note, for a tenure-tracked teaching position at a university or college, if the position is offered through a competitive selection process, most of the above requirements may be waived. This is referred to as Special Handling PERM. For details of the Special Handling PERM process for university or college teaching positions, please click here. 

PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at[email protected]. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service. 

 

[solman]

PERM Prevailing Wage Determination

Hiring a foreign national employee must not adversely affect the working conditions and wages of U.S. workers. In order to achieve this, the employer is required to pay the employee at minimum what is called the “prevailing wage” for the job. The prevailing wage is determined through the National Prevailing Wage Center (NPWC).The NPWC has been in operation since January 2010.

The NPWC determines the prevailing wage by collecting data for all jobs in all areas of the U.S. and keeping the data in the publically accessible OES database. The NPWC will match the job offered with a geographic region and a “skill level” related to the education, experience and level of supervision of the job being offered. There are 5 skill levels (known as JobZones) for the purposes of determining the prevailing wage. JobZones are discussed in more detail below in “EB-2 vs. EB-3 in the PERM Process.” The NPWC determines the prevailing wage based on the OES data for the type of job, the geographic region, and the skill level. For more information on the skill levels, see the O*Net Job Zones. 

When requesting a prevailing wage determination, PERM labor certification applicants can request the prevailing wage through the National Prevailing Wage Center, either by mail or through the iCert online system. A prevailing wage determination is valid for anywhere from 90 days to 1 year (validity periods of 90 days are the most common). It is recommended that an employer complete recruitment and file the PERM labor certification application within the validity period, or else they will have to re-request the prevailing wage determination, which is subject to change. For a prevailing wage determination to be used for a PERM petition the PERM advertisement must either START during the PWD validity period or the PERM application must be filed during the validity period. 

Example: Company A plans to file a labor certification for Ms. Smith. The company runs its first ad for the PERM position one day BEFORE receiving a PWD. All of the company’s other advertisements occur during the PWD validity period. However, the PWD expires one day before Company A submits its PERM petition. This case will be denied because Company A neither started recruitment nor filed the PERM petition within the PWD validity period.

If Company A in the above example had either STARTED the recruitment process or filed the PERM petition within the PWD validity period then the case could have been approved. For more information on the prevailing wage, please click here. 

Prevailing wage determinations are connected to the job and not the employee. Including the right information can be very important, since a mistake can change the prevailing wage amount. This kind of mistake sometimes cannot be fixed if recruitment has already started, and sometimes such a mistake will result in a denial of the PERM labor certification application once it has been filed. We recommend you retain highly experienced attorneys knowledgeable about PERM labor certification applications to avoid these kinds of problems. 

Although the NPWC makes the final determination on prevailing wage, an experienced attorney can usually make a preliminary determination of the PW based on the position, requirements, and employment setting. By offering a preliminary determination of the PW, the attorney is able to coordinate and design the job description and requirements based on the employer’s offer, thereby expediting the process. 

The NPWC generally uses online data from Occupational Employment Statistics (OES) as a base for PWD. However, if there is a qualified private alternative wage survey, the NPWC will also accept the alternative wage survey data. A qualified private wage survey has to meet very complicated and comprehensive requirements established by the DOL’s regulations. It is almost impossible for an employer to conduct a survey for an individual case. However, experienced PERM attorneys have access to the DOL’s accepted industrial private survey data and may obtain a lower PWD than OES online data. With proper argument, our office has successfully received a PWD from the NPWC on some cases lower than the PWD provided by the OES. 

 

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Factors that may affect PERM Labor Certification

The following factors may have an impact on the outcome of a PERM Labor Certification:

• Employer sponsorship –even though the attorney takes care of most of the paperwork, it is necessary to have a cooperative employer, so that the attorney can obtain the right information;
• The current U.S. economic climate might affect a PERM application because of the changes in the availability of U.S. workers
• Shortage/surplus of job candidates within the local area;
• It is important to have the right job qualification requirements – this is not something that can be amended after recruitment is complete, and can make a big difference in whether the PERM labor certification application is approved or denied;
• Whether the employer has laid off employees within the past six months prior to the submission of PERM;
• What the ratio of foreign workers to U.S. workers is for the employer’s workforce (note that U.S. worker simply means anyone with a green card or U.S. citizenship, or other permanent or semi-permanent status in the U.S.);
• The wage being offered –this is not something that can be amended after recruitment is complete, and can make a big difference in whether the PERM labor certification application is approved or denied.

We highly recommend retaining legal representation because of the many nuances in filing a PERM labor certification application. Employers are allowed to have attorneys represent them in the PERM labor certification application process, and often do, because it is so complex. 

If you were to retain Z&A as your attorneys, we would instruct and advise you during the entire process and prepare the many necessary documents, applications, and forms. Although we cannot interview your employees or make decisions for you, we can help you prepare the recruitment report. Also, although the employer must make his own PERM online account, he can create a sub-account for his attorney, and we can prepare and submit application forms through the sub-account. 

It is important to know that only employers are allowed to pay the attorney for legal services. The foreign national employee beneficiary cannot pay the attorney or reimburse his or her employer. 

 

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Employer’s Financial Ability for a PERM Application

An important thing the employer should be prepared to demonstrate is the ability to pay the wage offered to the foreign national employee (called, “the proffered wage”) at the time of filing the PERM Labor Certification and to maintain such ability throughout the immigration petition process until the alien has received a green card. Although the ultimate decision on ability to pay is left to the USCIS when filing the I-140, the DOL has the right to request the employer prove ability to pay. 

How to Determine Whether an Employer has the Financial Ability for a PERM Petition 

If any one of the following situations is met, then the employer will be considered to have the ability to pay:

1. That the petitioner-employer paid the beneficiary the proffered wage (as evidenced by the employee’s W-2 forms) when the foreign national employee is already employed by the employer, such as with H and L visa holding employees;
2. That the petitioner’s net income was equal to or greater than the offered salary in all years under consideration;
3. That the petitioner’s net current assets are equal to or greater than the offered salary in all years under consideration. Net current assets are the difference between current assets and current liabilities.
4. If the company has more than 100 employees, then it can offer a signed statement from the company’s financial officer, certifying the company’s ability to pay the proffered wage.

Please note that the employer must show the ability to pay from the date of submission of the PERM labor certification. 

Though financial documents are not required during the PERM submission, the USCIS requires financial documents during the I-140 petition process to prove the ability to pay from the date of the submission of the PERM. In some cases, the USCIS may further check the employer’s ability to pay during the I-485 adjustment status process even after the I-140 has been approved. 

 

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Effects of Mergers and Acquisitions on Labor Certification

Mergers and acquisitions may interrupt the validity of a pending or approved PERM labor certification, unless the newly formed U.S. Company acquired the interests of the original company that filed the labor certification application. 

During a merger or acquisition, a PERM labor certification application may continue and be considered valid, provided that the new company is the successor in interest of the original company that filed the PERM application. If the new or merged company took all the assets (accounts receivable, intellectual property rights, contract rights, etc.) and liabilities (debts, contract obligations, accounts payable, etc.) in the merger or buyout, the new merged company is the successor in interest of the original company and the new merged company may continue the PERM process for the foreign national employee. 

If a merger happens before a PERM case is filed or approved then a petitioner will need to show that the new or merged company is a successor in interest of the original company in the event of an audit. Advertisements must be run based on the employer at the moment of recruitment and ETA Form 9089 must be submitted based on the employer at the moment of filing. So, if a merger or acquisition takes place before a PERM cases is submitted there can be a discrepancy between the employer’s name on advertisements and the employer’s name on the PERM form.

Example: Company A starts recruitment for a PERM positions. In all of the advertisements the employer is listed as “Company A.” After the recruitment period ends, but BEFORE the ETA Form 9089 is filed, Company A is acquired by Company B. At the time of ETA Form 9089 filing, the company lists the employer as Company B (since Company A no longer exists as an employer). Company B must be prepared to document that it is the successor in interest of Company A in the event of an audit (which is likely in this situation).

If the merger or acquisition takes place after a PERM petition is submitted (the employer’s name on advertisements and ETA Form 9089 match) the new employer should still be prepared to document that it is the successor in interest if an audit occurs. Examples of documents used to establish a successor in interest relationship are: A contract of sale for the acquisition of the predecessor; mortgage closing statements; a Security Exchange Commission (SEC) Form 10-K for the successor entity; audited financial statements of the predecessor and successor for the year in which the transfer occurred; documentation of the transfer of real property and business licenses from the predecessor to the successor; copies of the financial instruments used to execute the transfer of ownership; and newspaper articles or other media reports announcing the merger and acquisition of the predecessor.  

Whether a merger happens before, during, or after approval of a PERM petition, an employer must be prepared to document the successor in interest requirements to the USCIS when submitting an I-140. Even if the employer has previously satisfied the Department of Labor (DOL) requirement that a successor in interest relationship exists, similar evidence will still need to be given to the USCIS in support of a filed I-140.

Example: Company C filed a PERM Labor Certification application for Mr. Kim. Shortly after Mr. Kim’s PERM with Company C is certified, but before Company C was able to file the I-140 petition with the USCIS, Company C concluded a deal and merged into Company D. In their merger agreement, Company D took all assets and liabilities (including immigration liability of Company C) and Company C dissolved after the merger. In such a circumstance, if Company D is willing to continue to sponsor Mr. Kim’s green card process, Company D may file the I-140 petition for Mr. Kim by using the approved PERM under Company C’s name.

Previous USCIS policy was to only accept approved labor certifications based on a successor in interest if the merger or acquisition occurred after PERM approval. Fortunately this is no longer the case and a labor certification based on a successor in interest relationship created at any time during the PERM process will be accepted. As long as an employer can adequately document that the successor company truly acquired all of the previous company’s assets and liabilities the USCIS will accept a labor certification based on a merger or acquisition.

 

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What is a Priority Date?

A priority date is the date when an alien initially expresses his or her intent to immigrate to the United States through an appropriate petition. For most employment-based immigration petitions, this is the date that a PERM labor certification application (ETA form 9089) was received by the Department of Labor. For employment-based petitions that do not require labor certification a priority date is the date which an immigrant preference petition was filed (USCIS forms I-140, I-526, and I-360).

The purpose of a Priority Date is to identify when the alien may apply for an Adjustment of Status (I-485) or an immigrant visa through Consular Processing if the alien beneficiary is outside of the U.S. Each month, the State Department's Visa office publishes a table of cutoff dates. The alien may apply for an I-485 provided his/her immigration petition is approved and the alien's priority date is within the established cutoff date for his/her category. For immigrant preference categories with backlogs (such as EB-2 and EB-3) an earlier priority date will mean earlier access to a visa when numbers become available.

If labor certification is required for an immigrant petition, as it is in most EB-2 and all EB-3 cases, the petitioner cannot file the I-140 petition until the DOL approves a PERM labor certification application. The priority date is thus the filing date of the PERM labor certification application with the DOL. The beneficiary will retain this priority date when filing the I-140 petition, provided that the DOL certifies his or her PERM labor certification application. The date that the DOL receives a PERM petition will establish a priority date, but this date will not be useable unless the petition is approved.

For certain kinds of employment based petitions a labor certification is not required, such as for national interest waiver applications and petitions for aliens of extraordinary ability or outstanding researchers/professors. In these kinds of cases, the immigration process starts with the immigrant petition rather than the PERM labor certification application. The priority date is the date the USCIS first receives the immigrant preference petition (Form I-140). 

For family-based applicants, a priority date is the date the USCIS first receives the immigrant petition (Form I-130) filed on the alien’s behalf. 

 

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Immigration through PERM Labor Certification Flowchart

The following procedural flowchart demonstrates the relationship between Labor Certification and Green Card Petitions for most EB-2 and EB-3 categories.

 

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Audit-Related Issues and Procedures

An audit in PERM cases is when a DOL Certifying Officer (CO) responsible for adjudicating a PERM application requests that the petitioner submit recruitment documents in support of their case. When a petitioner submits a PERM (ETA Form 9089) no additional evidentiary documents accompany it. So, it is possible that a PERM case is approved based on the facts of the application alone. An audit, however, is the process by which certain PERM applicants are required to submit proof of their recruitment activities. A CO can request an audit of any permanent labor certification application if he or she finds the application suspicious in its content, recruitment activities, or the authenticity of the job opportunity. The CO can also randomly select PERM applications for auditing as part of an integrity check to make sure the PERM process is functioning appropriately. Since any PERM application may be selected for auditing all employers are required to assume they themselves may be audited, and thus will comply with PERM regulations even if they do not get audited. 

The following are the most commonly observed issues in non-random audits that are triggered by some issue in the application itself. The letters and numbers in parentheses indicated the part of ETA Form 9089 that the issue is related to:

• Alien has an ownership interest in the employer or a family relationship with the employer (C9)
• Employer has less than 10 employees (C5)
• The job requirements have a foreign language requirement (H13)
• Job requirements for the occupation are beyond what is considered “normal” for the same or related occupations (H12)
• Alien gained his/her experience with the petitioning employer or received payment for education from the employer (J21 and J22)
• There are strikes, lockouts and/or layoffs involving the employer in the same or related occupation in the area of intended employment (N6 and I26)
• The alien has experience in an alternate occupation (H10)
• The job opportunity includes a combination of occupations as determined by O*Net (H15)
• Employer received payment of any kind for the PERM application from the alien (I-23)

If a PERM application is selected for audit, the employer will receive an audit letter that specifically states the additional documentation to be submitted, and establishes a date (30 days from the date of the audit letter) for submission of the required documentation, and advises that the application will be denied if the required information is not received by the deadline. One extension of the deadline by 30 days may be granted upon request at the CO’s discretion. The employer will have to submit all requested documents to the CO in a timely manner. If the employer does not respond to the audit request within the required time, this will be considered a refusal to comply with administrative remedies, the case will be deemed abandoned and denied, and no review will be available, either administratively or judicially. At the discretion of the CO, the employer may be required to conduct “supervised recruitment” for any future labor certification filings for up to two years if audit procedures are not followed by the employer. 

After receipt of the response from the employer, if the CO determines that the documentation is complete and consistent with responses on the ETA 9089, then the application will be approved. If the documentation is deemed deficient by the CO, the application may be denied. Alternatively, the CO may request additional documentation or order that the employer conduct supervised recruitment. 

The DOL has indicated that an application cannot be withdrawn once it has been selected for audit without an appropriate response from the employer. If an application is selected for audit, the employer cannot forego the audit by claiming the application is no longer valid or applicable. However, upon submittal of the required evidence an employer may withdraw a PERM application rather than wait for the lengthy audit procedure to finish. Employers MUST respond to an audit but may withdraw a petition once they have responded.

 

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What are the Remedies for a Denial Resulting from a DOL Mistake?

If a PERM petition is denied and an employer feels that the denial was in error, he/she may file a request for appeal. One such appeal is the Motion to Reconsider which is an appeal to the Certifying Officer (CO) to reconsider his/her decision based on the argument of a petitioner. A Motion to Reconsider can only be based on evidence that was part of the CO’s decision or which the employer did not have an opportunity to previously submit. There is also the option of a Motion to Reconsider when a denial is due to government error, such as when the CO incorrectly enters data or fails to acknowledge receipt of audit documents. Another type of appeal is a Request for Review in which the Board of Alien Labor Certification Appeals (BALCA) reviews the decision of the CO based on regulations and previous case law. All of these appeals, while potentially beneficial for the petitioner, add considerable time to the PERM process.

If an employer believes that a denial is a result of the DOL’s system error or misjudgment of a DOL officer, an employer may file a motion to reconsider with the DOL processing center that made the decision or file an appeal with the Board of Alien Labor Certification Appeals (BALCA). A motion to reconsider or an appeal most be filed within 30 days from the date of denial. 

Appeals with BALCA usually take a long time until a decision is made. Once a case is sent to BALCA for review, NO new evidence will be accepted. All BALCA decisions are based on the evidence that was on file at the time the CO made his/her decision. There are times when it may be more advantageous to accept a denial and re-file a PERM petition rather than go through a lengthy appeals process, as it will take less time. Unless pressing non-immigrant visa issues require an approved PERM petition immediately, the appeal route may not be advisable. 

In most instances, if an appeal is necessary, a motion to reconsider may achieve the same goal as a BALCA review, and the DOL may reconsider and approve the case if a strong legal argument is presented with solid support of the law. Our firm has had many successful experiences in filing motions to reconsider process and our strong arguments have saved numerous cases that had been denied. If you would like to talk to us about an appeal of a denial of a PERM labor certification application or a motion to reconsider, please contact us.

 

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What Happens if Supervised Recruitment is Ordered?

Supervised recruitment may be ordered by the Certifying Officer (CO) at the DOL in place of a denial, either after receipt of an unsatisfactory audit response, or when an employer has previously failed to adequately respond to an audit letter. Supervised recruitment is exactly what it sounds like: The DOL maintains close supervision over an employer’s recruitment process from beginning until a decision is made. Supervised recruitment can either be implemented for an already filed PERM petition or for a new petition. In supervised recruitment the employer should not initiate recruitment without the CO’s request, and the CO will direct where, when, and how the recruitment will be conducted. 

Supervised recruiting is much more demanding than the regular PERM process and each step is overseen be the CO. The employer must submit a draft of the proposed ad to the CO for approval within 30 days of the notification that supervised recruitment is required (a onetime, 30 day extension of this deadline is permitted at the discretion of the CO). If the ad is approved the CO will direct the placement of the advertisement. It is largely up to the CO where a supervised recruitment ad will be placed, but most often it is in a newspaper. If the employer is directed to place the ad in a newspaper it must run for THREE (3) consecutive days, one day of which must be a Sunday. The employer shall notify the CO when the ad will appear. The approved ad must advise applicants to send resumes or applications to the CO, which include an identification number and address as designated by the CO. Resumes submitted for a position are sent directly to the CO who then forwards them to the employer, thus giving the CO a complete view of the applicant pool. If the employer receives any resumes as a result of the advertisements he/she must consider them as well and include them in the final recruitment report to be sent to the CO. The ad must fully describe the job opportunity, including a wage rate that meets or exceeds the prevailing wage rate (as well as meets or exceeds the wage offered to the alien) and summarize the minimum job requirements as contained in the application form. It must further offer training if the job would normally require the employer to provide training. These requirements are unique to supervised recruitment and not common or required in regular PERM petitions. The CO may also require other specific recruitment efforts containing the same information.

The CO will advise the employer when the recruitment process has ended, tell him/her to compile their recruitment documents and create a recruitment report, and give a date by which evidence must be submitted to the CO. A recruitment report must be submitted within 30 days of the CO’s request for the report (with a one time, 30 day extension possible). The Employer’s written report must be signed, detailed and contain specific information regarding the recruitment process. If the employer does not respond within the time given by the CO in the order for supervised recruitment, the CO shall deny the application.