LABOR CERTIFICATION APPLICATIONS
PERM -
Rev 3-22-2005
This is to outline the process of obtaining permanent residence in the United States based upon an offer of employment, commonly referred to as a ¡§labor certification¡¨ (formerly Form ETA-750 and now ETA-9089 under the new system that became effective 3/28/2005). The new system is called ¡§Program Electronic Review Management¡¨ (PERM ). Under the new system, all applications are filed directly with the appropriate Regional Office of the U.S. Department of Labor (USDOL).
These are some of the key points of PERM:
–PERM rules must be followed for all labor certification applications filed on or after March 28, 2005. After this date, no other method can be chosen;
–The U.S. employer must pay at least 100% (instead of only 95%) of the “prevailing wage,” which if found in reliable and published wage surveys;
–PERM labor certifications will be filed electronically (or by mail) directly with the USDOL.
–USDOL has set the goal for making decisions on the electronically filed PERM applications at 45¡V60 days (instead of months and years under the RIR or “standard” processes).
Please note that the application for alien employment authorization is prospective in nature. This means that the sponsored alien need not currently be employed by the sponsoring organization. The application assumes that the sponsored alien will commence employment if and when he/she is accorded lawful permanent residence in the future (that is, after securing permanent residence status). Permanent residence status is often referred to as securing a green card.
Please note that the alien must not be the owner, co-owner, shareholder or officer or have family ties to such company officials of the sponsoring company as that would amount to self-sponsorship and such self-sponsoship is not allowed under the USDOL regulations.
SPONSOR/EMPLOYER
When we refer to the “sponsor” we mean the employer or the U.S. company or legal entity that will make a job offer to the alien and file an application with the U.S. government. When we refer to “alien” or “alien beneficiary” we mean the individual to whom a job offer is being made and who will eventually obtain permanent residence based on this job offer. There is no self-sponsoring allowed.
STEPS TO BE TAKEN
The process involves three stages, the first of which is the most complicated. Those stages are:
1. The employer must file with the U.S. Department of Labor and obtain an approved labor certification;
2. The employer must file an immigrant visa petition with and receive an approval from the U.S. Citizenship and Immigration Services (USCIS); and
3. The U.S. consul or USCIS must issue the alien being sponsored an immigrant visa. If our firm is retained, we will draft all the necessary forms for approval by the sponsor and/or by the sponsored alien. Our firm will also take care of all necessary filings and will guide the sponsor in each and every step of the process, including drafting and placing all of the required ads.
STAGE 1. DEPARTMENT OF LABOR APPROVAL (Labor Certification)
STAGE 2. U.S.C.I.S. (formerly INS) APPROVAL (Immigrant Visa Petition)
STAGE 3. U.S. CONSUL OR U.S.C.I.S. APPROVAL (Immigrant visa issuance)
STAGE ONE
Labor Certification
In order to obtain a Labor Certification from the U.S. Department of Labor, an Application for Permanent Employment Certification (Form ETA-9089) under PERM is completed containing a detailed description of the job to be performed and the requirements necessary in order to qualify for the position (education, training, experience, etc.). The form also contains biographic information with respect to the beneficiary alien (prospective employee). This form is used as the basis for the application and controls the terms of the entire process leading to permanent residence (green card). This form is not designed to help the alien beneficiary to obtain permanent residence but, rather, to help the U.S. Department of Labor ascertain whether or not the sponsor has made bona fide efforts to locate and hire a qualified U.S. worker (U.S. citizen or permanent resident).
Prior to filing the completed Application for Permanent Employment Certification, recruitment must be conducted as follows:
First, there is an internal posting of a Notice of Job Availability within the sponsor¡¦s place of business. The notice must be posted for not less than ten full consecutive business days and is in a format prescribed by the U.S. Department of Labor.
Second, the sponsor must place certain advertisements, depending on the job level, between 30-180 days prior to filing the application in:
–Two (2) Sunday newspapers of wide circulation in the area of intended employment(where the job is located) and;
–A Job Order (for referral of job seekers) must be placed with the Department of Labor and the same must be open (active) for at least 30 days period and is so indicated on Form ETA-9089.
In addition to the required advertising above, the sponsor may have to select three (3) additional methods of recruitment from the following list, if the position offered is considered ¡§professional:
–Placing an ad on the Radio or Television;
–Participating in Job Fair;
–Placing an ad in the company¡¦s website;
–Placing an ad in a newspaper website;
–Registering the job opportunity with a Job Search Website;
–Contacting an Employment Agency;
–Conducting ¡§On-campus college recruiting¡¨;
–Placing a Career Placement Office advertisement;
–Employee Referral Program;
–Placing an ad in a trade or professional journal;
–Placing an ad in a local or ethnic newspaper.
To prepare the sponsor¡¦s supporting statement which will detail all recruitment efforts, the following will be needed as proof of that all recruitment has been conducted:
–the company’s annual reports or printed informational materials about the sponsor;
–the originals or complete copies of all print recruitment advertising placed during the last six months (local and national) in newspapers and professional journals showing attempts to recruit/hire individuals in the specific occupation or in similar occupations generally;
–details of any college recruitment, job fair such as schedule of recruiting trips including locations, dates, number of persons in attendance from the corporation and a statement of the type of trip involved ;
–list of outside placement agencies (employment agencies/headhunters) used by the sponsor;
–if the sponsor fills some of its hiring needs by hiring through contractors, a list of contractors;
–copy of the employee referral program whereby employees are given bonuses for referring qualified individuals (if any);
–if the sponsor has a website on which it lists job opportunities (open jobs), the open job web site address (and ad print out);
–if the sponsor is cross-referenced on website of a third party, then a list of the website addresses and a print-out;
–if the sponsor fills its open jobs with any Stare employment services, a copy of such registration or requests filed; and
–if the sponsor engages in any unique forms of recruitment, documentation of such unique recruitment.
After the recruitment has been conducted and all supporting documentation obtained, Form ETA-9089 is then submitted to the U.S. Department of Labor (USDOL), ELECTRONICALLY (which means the application will not be accompanied by paper evidence of the recruitment efforts but, rather, of a summary of such recruitment, The USDOL may take one of three possible actions: 1. issue an approval, 2. issue a denial or 3. the case may be selected for an audit. An audit will take the form of a request for additional information or clarification, most likely a submission of all paper evidence of recruitment. If there is no audit request made, the approval process may take between 45 and 60 days from the date of submission.
The issuance of an Approved Labor Certification (certification of the application) concludes the involvement of the USDOL and the sponsor will then take the next step in the process. Please note that the PERM regulations provide for the recession (revocation) of the labor certification within a period of five years after certification.
The approval of the Labor Certification does not in any way insure that the next two stages will likewise be approved as each stage has its own criteria to be met.
PLEASE NOTE that if the application for alien employment certification is denied because the sponsor has located a qualified U.S. worker, the sponsor is not obligated to hire that qualified U.S. worker; however, the alien will not be able to obtain lawful permanent resident status as the sponsor has failed to establish that there are no qualified U.S. workers.
STAGE TWO
Immigrant Visa Petition with the U.S. Citizenship & Immigration Services
The second stage is the filing of an I-140 Immigrant Visa Petition with the U.S. Citizenship and Immigration Services (USCIS) by the employer on behalf of the alien beneficiary. The purpose of the immigrant visa petition is for the USCIS to ascertain: that the labor certification was properly issued; that the alien has the necessary qualifications to accept the position based upon the statement of requirements contained in the Application for Permanent Employment Certification and that the sponsor is financially able to pay the alien the offered wage.
FINANCIAL ABILITY TO PAY THE OFFERED WAGE
The financial ability of the sponsor is principally to determine that small companies have sufficient financial resources to follow through with the job offer and it is proved through the company¡¦s production of the corporate income tax return or other competent financial evidence (which may be audited financial statements or annual reports for publicly traded companies. Please note that if the alien is not on the payroll of the sponsor, the rule of thumb to follow is that the sponsor¡¦s corporate income tax return should show a profit which is equivalent to at least the salary being offered to the alien beneficiary. The financial evidence that will be submitted to the Immigration Service will be for the year in which the labor certification application is filed with the Department of Labor. We strongly suggest that this aspect be fully explored before filing the Labor Certification application. If a company is not financially viable, the second part of the process will be denied although the Labor Certification has been approved.
Please further note that at this stage the beneficiary of the Labor Certification must demonstrate that he/she has all the educational and/or work experience required of U.S. workers during the recruitment period. If the alien beneficiary fails to meet this requirement, the Immigrant Visa Petition will be denied.
STAGE THREE
Interview at the U.S. Consulate outside the U.S. or Adjustment of Status interview in the U.S.
The purpose of the interview is to determine that the alien beneficiary has the proper intent to work for the sponsor in the position offered and that he/she is not excludable from the United States. The grounds for exclusion include things such as having a dangerous contagious disease, being a criminal, being a drug addict or drug trafficker, being an immoral person, having persecuted people based on race, religion or national origin such as a member of the Nazi government, or any one of a number of other grounds which relate to particular classes of “undesirable” individuals. The interview is generally held by a Consular Officer except that certain individuals (those who have never violated their status in the United States, have never overstayed, and have never worked without permission) are qualified to appear within the United States before a USCIS Examiner in the United States for the interview. This is done by filing with the Immigration Service an application known as an “Adjustment of Status” application. For some, there may exist the option of filing Stages 2 and 3 concurrently but this option is not available if you choose to or must consular process.
Following the issuance of an immigrant visa to the alien beneficiary, both the sponsoring organization and the alien have obligations toward each other. The sponsor is expected to have the position available for the alien and the alien is expected to actually report for work. The employment involved is an employment at will and may be terminated by either party as in any other employment at will situation. The fact that there was a written offer of employment utilized within the Labor Certification process does not create a contract of employment for any particular length of time. If the employment does not work out, the sponsor is free to terminate the employment relationship and the alien beneficiary is, similarly, free to terminate employment as well. The key is to remove any fraudulent appearance on behalf of the employer and the applicant.
The entire matter from the filing of the Application for Permanent Employment Certification through to the interview for permanent residence should take between 2-4 years. Any processing time given here is an ESTIMATE and it does not constitute an assurance on our part.