This is the first step for many employment-based green card cases and is required for applicants under category EB2 and EB3. The purpose of a Labor Certification is to ensure that at any given point there are no willing and able U.S. workers or Permanent Residents available for an open position for which Labor Certification is being sought. The Department of Labor certifies to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that the employment of the foreign employee will not adversely affect the wages and working conditions of similarly employed U.S. workers. An employer may then proceed to file the immigrant petition for the foreign worker and hire a foreign worker on a permanent basis.
In order to file the PERM Petition, the following criteria must be met:
- The job opportunity must be for a full time, permanent position.
- A bona fide recruitment must be conducted for the job opening to try and recruit willing and able U.S. workers.
- Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications.
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
The PERM Petition can be filed through the online system or mailed to the DOL. Employers must be able to prove their business is incorporated and legitimate. The date the DOL receives the PERM Petition for processing is called the Priority Date, which will affect later stages of the Green Card process DOL reserves the right to audit any petition filed with a request for documentation, explanation of requirements or reasons why U.S. workers were not qualified. Once the PERM Petition has been approved, it has a validity period of 180 days in order to file the Form I-140 with the USCIS.
DOL provides a determination on the minimum salary that must be offered to ensure the wage will not adversely affect U.S. workers. The employer must offer at least 100% of the Prevailing Wage determined.
The employer must specify the level of education and experience required for the job. The foreign worker must meet all education and experience requirements in order to be considered. Foreign degrees can be considered, but need to be evaluated by an evaluation agency. Experience gained with overseas companies can be used to meet the employer’s experience requirement.
Generally, experience gained with the sponsoring employer cannot be considered, except in cases where it can be proved that the job being offered to the alien is at least 50% different than the position he currently holds.
In order to demonstrate that no U.S. workers meet the employer’s minimum requirements for the offered position, the employer must test the local labor market. The law requires that an advertisement be placed for labor certification purposes must contain the employer’s name; the place where employees will work; and a method of contacting the employer. The print ad should also be placed in the appropriate section of the newspaper. If it is not placed in the appropriate section, it will not be considered a good faith effort to recruit the US workers. The following mandatory recruitment efforts are required on part of the employer:
- 30 Day Job Order posted with the State Workforce Agency
- 2 Sunday Newspapers in the largest circulated newspaper in the employment area
- Job Posting Notice posted for 10 business days at the job location
In addition, the employer must post a minimum of three more ads from the following list of options:
- Campus Placement Offices
- Corporate Web Site
- Employee Referral Program with Incentives
- Job Fairs
- Job Search Web Site Other Than the Employer’s
- Local and Ethnic Newspapers
- On-Campus Recruiting
- Private Recruitment Firms
- Trade or Professional Organizations
U.S. workers will have an opportunity to forward their resumes and be considered for the position. The employer must review each resume received against the requirements for the position and prepare a recruitment report that categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. While the employer is not obligated to hire a qualified applicant, the PERM process must be put on hold even if there is one applicant who is qualified in all regards and is willing to accept the job at the salary offered. The employer can test the labor market again in six months.
Neither the attorneys nor the employee for whom the PERM is being applied are permitted to review the resumes. Only the employer can perform the resume review and give their comments. Once the employer provides the reasons for rejection of applicants, the attorney can then review the reasons and make sure that the employer has not rejected any US workers for unlawful reasons.
When the PERM Petition is filed online, none of the supporting evidence is filed. All documentation related to the PERM process must be kept on file for 5 years from the date the ETA 9089 is filed. In the event of an audit, the DOL/Certifying Officer may request any evidence related to the preparation of the PERM process, including Prevailing Wage Determinations, proof of advertisements, resumes received with employer’s justification as to why each applicant is not qualified, and proof of Business Necessity if the requirements for the offered position are greater than the DOL standard requirements.
When the requirements of the offered job exceed the “normal” job requirements the DOL considered for the position, the employer may be audited to justify these higher requirements. Many professional jobs are placed in this situation by the abnormally low requirements defined by the U.S. Department of Labor. These requirements are embodied in a concept known as Specific Vocational Preparation (SVP). When the SVP is exceeded for a job, the employer may be required to justify the requirements. The SVP standards, in our opinion, are inappropriately low. For instance, the SVP for a Software Engineer typically permits the employers to require no more than a Bachelor’s degree with maximum two years’ experience or Master’s degree with no experience. This is patently inconsistent with the market conditions. In all such cases, where the employer exceeds the SVP, a justification by DOL may be sought.
We, at the Law Offices of Aditya Surti, LLC can help you in applying for immigrant visas on behalf of your alien workers. To schedule your appointment contact us at 201-518-6642201-518-6642 (Jersey City Office), 732-750-1269732-750-1269 (Woodbridge Office). You can also email us at firstname.lastname@example.org.