PERMANENT LABOR CERTIFICATION – PERM

A permanent labor certification, PERM, issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

As part of executive actions on immigration a full rulemaking will be undertaken to modernize the PERM program.

So, obtaining a U.S. green card is a multi-step process. First of all, a foreign worker seeking a green card, shall obtain a job offer from a U.S. employer.

Job offer

The job offer must be for permanent, full-time employment at prevailing U.S. wages. The employer shall consult O*Net website to describe the job requirements and ascertain the basic requirement for the specified position. (When examining labor certifications, the Department of Labor is checking to see if the employer created a job description with minimum requirements to suit a particular alien and in effect limit a U.S. job applicant’s chance to fill this position. )

Degree Equivalency

A foreign individual may qualify for EB-2 classification if a job requires either an advanced degree or a bachelor’s degree (or foreign equivalent degree) plus 5 years of progressively responsible professional experience.

The EB-3 preference classification includes both skilled workers and professionals. To qualify as an EB-3 “skilled worker,” a foreign worker need only demonstrate completion of at least 2 years of related experience.

However, for the “professionals” sub-category of the EB-3 classification, the foreign worker should demonstrate that he or she holds a baccalaureate degree or its equivalent.

The Specific Vocational Preparation (SVP)  is the number defined by DOL assigned to each job. SVP indicates the number of years of specific (rather than generalized) preparation needed to enter into a particular vocation. DOL follows the SVP system to determine whether education and experience requirements are reasonable for a given job. DOL assigned the following numbers for the degrees obtained by an applicant.

• Associate’s degree (in a specialized field)  – 2 years
• Bachelor’s degree – 2 years
• Master’s degree – 4 years
• PhD degree – 7 years

The following is the conversion table of years of necessary experience into SVP.

• Short demonstration only – 1
• Anything beyond short demonstration up to and including 1 month -2
• Over 1 month up to and including 3 months -3
• Over 3 months up to and including 6 months -4
• Over 6 months up to and including 1 year – 5
• Over 1 year up to and including 2 years – 6
• Over 2 years up to and including 4 years -7
• Over 4 years up to and including 10 years -8
• Over 10 years – 9

The Different Agency Standards. The USCIS and DOL regulations governing education and experience requirements are very different. For example, DOL sees a four-year bachelor’s degree as two years of SVP. In contrast, under the USCIS H-1B regulations, a four-year bachelor’s degree is equivalent to 12 years of specialized work experience and a three-year bachelor’s degree equates to nine years of specialized work experience. Meanwhile, DOL views a master’s degree as four years of SVP. Under the USCIS employment-based immigrant visa regulations a master’s degree is equivalent to a bachelor’s degree plus an additional five years of progressive work experience in the specialty field. This would amount to a total of seven years of SVP. Thus, beware of the difference  when you are drafting your job description and requirement.

“Single source” rule .  The beneficiary must produce one degree that is determined to be the foreign equivalent of a U.S. bachelor’s degree in order to qualify in the “professionals” sub-category of the EB-3 classification or a master’s degree for the EB-2 classification.

The “Kellogg Language”   if the foreign national is already employed by the sponsoring employer and meets only the alternative requirements for the job and not the primary requirements, the application must state that “any suitable combination of education, training, or experience is acceptable.”

Labor Certification Step One: PWD Request

As the first step in the PERM process, U.S. employer makes a “prevailing wage request” to the U.S. Department of Labor (DOL) via its website, http://icert.doleta.gov. The prevailing wage request provides the DOL with information about the offer such as job requirements, job duties, and the worksite location. The employer can request several different positions to DOL’s wage requirements. The DOL uses application information to issue the employer a prevailing wage determination (PWD), stating the common wage for the specific job position in the specific worksite location.

The PWD is an important aspect of the PERM process, because immigration law requires that employers pay foreign workers at least the prevailing wage for the worker’s position. PWDs can vary greatly based upon the geographic location of the job. For example, the PWD for an attorney working in metropolitan New York is going to be very different from the PWD for an attorney working in rural Texas.  Employers must provide the correct worksite location on the prevailing wage request to ensure that the DOL gives the employer the accurate PWD.

There are a number of reasons it is often beneficial for an employer to obtain the PWD before the recruitment process for the position begins. One reason is that there is a level of unpredictability in the DOL PWD process. If a wage is used that the employer believes will be the PWD, but the actual PWD issued weeks or months later turns out to be higher, the employer may be forced to restart the entire recruitment process from the beginning.

Labor Certification Step Two: Placing Ads and Recruiting

The next recruitment step is especially critical, as the entire point of the PERM process is to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job opportunity. U.S. employer must conduct “good faith” recruitment, which means the recruitment must be genuinely calculated to attract any available U.S. workers.

All employers filing the ETA Form 9089 (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, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.

The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor’s or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

For PERM, there are three mandatory advertisements. The U.S. employer must place an advertisement with the state workforce agency in the state of intended employment. The state labor job posting is required to run for 30 full days. For example, let’s say the employer is located in Alexandria, VA, and the job opportunity is in Alexandria, VA. The employer must place the advertisement with the Virginia state workforce agency, since that is the area of intended employment.

Additionally, the employer must place two newspaper advertisements on consecutive Sundays. The newspaper must be the major newspaper of general circulation in the area of intended employment. In the above example, a good choice for the newspaper would be the Plain Dealer. Online advertisement through news paper will be counted towards second advertisement.

Two other advertisements could  be fulfilled through company’s own website or professional journals.

The employer must also post a notice of the job opportunity at the worksite location, for example in the company’s kitchen area, or on the company board.

It is usually recommended that employers place all of the advertisements at the same time (or close to the same time) if possible. The reason for this is that all of the advertisements must be less than 180 days old at the time of filing the PERM application. If one of the advertisements is older than 180 days, that ad cannot be used for the PERM, and the employer will need to place another ad before filing the PERM.

During recruitment, the employer must promptly and appropriately respond to any resumes or applications submitted by interested candidates for the proffered position. Otherwise, the DOL will not consider the recruiting efforts to be valid and acceptable. This almost always leads the employer to have numerous questions for the attorney as to the appropriate response and screening of potentially qualified applicants. If an employer improperly handles job applications or interviews, it can ruin the process.

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

After the 30-day job order and most of the other recruiting is complete, the PERM labor certificate filing still must wait for an additional 30 days. This is so that the employer can continue to receive and consider job applications in response to the prior recruiting efforts.

Labor Certification Step Three: Filing ETA Form 9089

After the advertisements are complete, the employer has to file the PERM application with the DOL using ETA Form 9089 (provided no qualified and willing U.S. workers applied for the job position) through DOL  portal http://www.plc.doleta.gov. The ETA Form 9089 again provides the DOL with information on the job opportunity (such as the worksite location, duties, requirements, and prevailing wage), information on the employer’s recruitment process (such as where the employer placed the ads and on what dates), and information on the foreign worker (such as the worker’s place of birth, education credentials, and work experience).

Once Labor Certification is filed, the DOL can

(1) approve the PERM
(2) deny the PERM or
(3) audit the PERM.

Refer to PERM processing times here:

If your PERM is audited, the DOL will ask your employer to provide additional evidence for the application. After your employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.

After receiving the approved PERM, the employer can move on to the next big step of the process, which is filing an I-140 visa petition on your behalf with U.S. Citizenship and Immigration Services.

If you are running out of time, once PERM is certified, the I-140 petition should be filed through premium processing, and if the I-140 is approved prior to PERM filed one year ago, an H1B petition requesting extension of status can be filed if you are present in the U.S. at that time. If not present, the H1B petition will be filed requesting consular processing.

If PERM is denied the Employer has 30 days to choose one of three options:

•  request reconsideration of the decision by the certifying officer (CO)
• request review by the Board of Alien Labor Certification Appeals (BALCA)
• do nothing

If the employer does not request either option within the thirty-day period, the decision will become final, and the employer will have no further opportunity to challenge the denial.

Resources:  Foreign credentials evaluation.

PLEASE CALL WASHINGTON D.C. IMMIGRATION LAWYER TO GET HELP WITH PERM APPLICATION

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