Labor Certification and PERM Filing

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    Introduction of Labor Certification and PERM Filing

    Non-residents who are given a permanent job offer in the U.S. have to create a base of suitablity for filing an employment-based preference petition, either through;

    • Labor certification (employment-based second and third preference)
    • Exclusion from labor certification (employment-based first, fourth and fifth preference)
    • Schedule “A” classification.

    Labor Certification

    Non-residents who have a permanent U.S. job offer, and who are not qualified to be exempt from labor certification, have to acquire Alien Employment Certification, also known as labor certification from the U.S. Department of Labor (DOL). The DOL has to be persuaded that there are not any suitable U.S. employees willing to take the permanent job that was offered to the non-resident, and that wages and working conditions offered for the job will not have a bad effect on the U.S. work force. When the labor certification is approved, it acts as a foundation for filing an employment-based second or third preference application with the USCIS.

    Requirements for Labor Certification

    the business must show that it has maintained a rigid plan for recruiting that reviews the area labor pool for available and suitable U.S. employees in the location where the job is located. The company must demonstrate to the DOL that:

    • The position being tendered to the non-resident is open and available to anyone in the U.S.
    • No unnecessary or unreasonable restrictions are put on the job
    • The proposed salary is at minimum the normal salary in the region.

    The DOL has taken precautions to defend U.S. employees

    Precautions

    PERM Overview

    PERM (Program Electronic Review Management)

    DOL published definitive regulations in 2004 that created a new labor certification procedure, termed “Program Electronic Review Management” (PERM). PERM was enacted on March 28, 2005, with the intent to assist with quicker decisions. More rules were created by PERM to protect U.S. employees.

    PERM Process

    PERM (Program Electronic Review Management) is an electronic processing system for filing labor certification applications for employment based green card.
    Under the PERM system, labor certification applications are submitted online and straight to the U.S. Department of Labor (DOL).

    Some of the benefits of PERM are that it requires much less paper work and also it’s much quicker since electronic filing lowers the time of gathering documents and so on.
    PERM is considered to be stricter and also a rule-based system, which is similar to existing RIR needs. It will need a pattern of recruitment.

    Initial Steps of PERM Filing

    Employers or their attorneys need to take the following initial steps to file a labor certification application with PERM system:

    To file electronically, employers must register through the PERM online system. The employer can start the filing process after the registration is approved.

    The complete labor certification application consists of one form, ETA Form 9089–the Application for Permanent Employment Certification. Labor certification applicants are encouraged to file electronically. The application cannot be submitted more than 180 days after the first recruitment step listed on the form.

    On Form ETA 9089, the employer has to describe the job in detail, any special requirements, and indicate minimum education and experience.

    Supporting documentation is not submitted with the application. However, the employer retains the documentation in the event of an audit.

    When an application for labor certification is received, the Employment Service checks to see that the position was posted and the correct salary, then the position is posted on its recruiting system for at least 30 days by the State Workforce Agency (SWA) for the region where the job is being offered. The company must concurrently post the job in a trade magazine or newspaper.

    Description and Period Requirements of PERM Filing Advertisement
    The DOL has some special requirements for the advertisement of the employment under PERM system.


    A. Description of the Ad:
    The advertisement for the position must include the job location, employer’s name, a description of the position that is specific enough to apprise U.S. workers of the position, and request that the applicant send resumes or report to the employer.


    B. Period Requirements:
    At least thirty days must elapse between the last day of the required job posting and the submission date.

    DOL Processing and Audit

    When an application is received, DOL software uses a set of rules to review the application by generating information from certain fields on the application. The software automatically posts a denial if the application information violates the governing DOL rules.

    For applications passing the preliminary review, the DOL software will again do an application review based on another set of requirements and DOL identifiers, and will automatically generate an audit for any applications that appear to have problems meeting the requirements. Additionally, some applications will be randomly selected for an audit by the computer.

    Some examples of issues that will automatically generate a denial by the software or will lead to a denial during later stages of review include:

    visa denial
    Sponsor Check

    The application initial review includes a sponsor check where the employer is contacted through phone or email by DOL personnel so see if the job is being offered to the non-resident.

    Application Approval

    If the sponsor check is finished and the application is not being audited, then it is sent for the final review by an analyst where a final check is conducted to make sure the application does not have any inconsistencies or errors and there is nothing that indicates that an audit is needed. The DOL analyst will certify the application and return it to the employer if there are not any violations or issues that would require an audit.

    Some examples of issues that will automatically generate a denial by the software or will lead to a denial during later stages of review include:

    The first possible result of the DOL initial processing is a non-audited application (that is, an application that was not selected for an audit and is waiting for DOL final review by an analyst).
    The DOL officer could issue the labor certification if the employer cannot find a U.S. worker after recruiting that is available, willing, qualified, and able to take the position. For a non-audited application, the DOL estimates the employer could be approved in 45-60 days.

    The second possible result is an audited application (an audit letter has already been issued).

    The third possible results is an application that was denied and is now being appealed (motion to review and/or motion to reconsider has already been filed).

    The fourth possible result is a “government error” motion to reconsider for cases that have been denied due to government error. The employer or representing attorney can send an inquiry to the Atlanta NPC if the case takes longer than the usual processing time.

    Who May be Selected to be Audited in the PERM Labor Certification?

    A particular case may be selected for audit for several reasons. Cases may be flagged for audit on the basis of a review of the application or they may be randomly selected by the DOL’s computer system.
    The audit notice will detail the documentation that must be submitted. 

    The DOL has declined to specify the criteria for when an audit letter will be issued.
    The agency targets applications for audit that appear to have problematic issues, for example, applications listing foreign language requirements or requirements above the SVP (standard vocational preparation) level for the occupation, etc.

    What an Employer Should do When Selected for Audit after filing PERM

    When selected for an audit, the employer is required to provide substantial supporting evidence proving that all of the requirements for labor certification have been met, including any “reasonable” conditions required by the DOL officer. There have consistently been more audits recently and the DOL anticipates that the increased number of audits will continue.

    Possible Results after Audit – Approval, Denial or Supervised Recruitment

    The DOL will certify an application if the employer submitted the complete documentation requested by the audit and the documentation is consistent with the responses from Form 9089. The certification will be denied if the evidence provided to the DOL is not complete. The three possible results from an audit are approval, denial, or supervised recruitment.

    Key Elements of the Employer's Audit File in a PERM filing

    Denial: If the DOL issues an application denial after reviewing the employer audit file, PERM says that the employer can file a request for reconsideration within 30 days of the date of denial issuance. Also, a denial can be appealed to the Board of Alien Labor Certification Appeals (BALCA).

     

    After a denial of certification, there is not a waiting period imposed on employers under the final PERM rule. Unless ther is a pending request for review by BALCA (Board of Alien Labor Certification Appeals), a new labor certification concerning the duplicate job position and the same individual may be filed any time.

     

    Supervised Recruitment: The certifying officer may order supervised recruitment or request additional evidence. If there is an order for supervised recruitment, any prior recruitment conducted before the PERM application was filed by the employer is employer filed its PERM application is ignored, and a new recruitment process is started under the supervision of the certifying officer.


    (NOTE): In geographical areas and industries where there are large layoffs, supervised recruitment can be ordered without an audit. Also, in some circumstances, a supervised recruitment order may be issued for any future filings.

    The petitioner’s employer can file for an I-140 from the USCIS after the Labor Department certifies the case. The labor certification’s purpose is to establish that there are not enough willing, available, and qualified U.S. employees for the position. The certification also proves that the non-resident’s employment will not negatively affect the working conditions and salary of similar U.S. employees. Once the certification is issued, it remains valid while the job is available.

    The DOL policy states that a labor certification already approved cannot be amended. The application is final once it is mailed or electronically filed and changes (including typographical errors) will not be allowed.
    Pay Attention to Changes surrounding the Certification that May Affect its Validity.
    If there are changes to the facts involving the certification, the USCIS will evaluate the changes to determine if the validity of the certification is affected. If the validity is not affected, then no changes are needed. If the validity is affected, the certification petition will be denied by the USCIS.

    Changes that require USCIS evaluation concerning the validity of the labor certification relate to these issues:

     

    • The non-resident’s employment is terminated, which affects the identity of the person listed on the certification.
    • The job location changed due to company relocation or the non-resident’s transfer to another site.
    • The company ownership or name was changed.
    • There was a substantial change in the salary or duties for the job.

    Current Trends of PERM Application

    Even though the possibility of getting a labor certification is determined by the area job market conditions, there are trends that have become apparent.
    More Skilled Worker Visas Are Available:

    In reality, visas are available only for non-residents whose jobs require at least two years of experience and training. The reason for this is the backlog for the third employment-based preference category for other workers. The approval time is so long that the job offers are often retracted before the process for approval is complete.


    Job Types and Geographical Areas are Important Factors: The number of jobs in the area will affect the job market.
    For example, because there are many qualified U.S. applicants for the job of hotel manager in a resort location, it would be hard to prove that a job shortage exists in this geographical area.

    In general, laws and the U.S. economy favor non-residents who have skills and job capabilities not easily found in U.S. labor force.

    Jobs from an Extremely High Skill Set or Extremely Low Wage and Conditions Have Better Chances of Approval:

    Labor certifications are usually easier to get for jobs that are on opposite sides of the skill range. For instance, a labor certification will probably be approved for an experienced advanced molecular biochemistry scientist. Similarly, bad working conditions and low salary may win a labor certification approval for a coin-operated laundry attendant since it will be difficult to find U.S. employees willing to work for such a low wage.

     

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