Labor Certification (PERM) Process

General Overview of Employment-Based Immigration That Requires Labor Certification

1. Most employment-based cases require certification from the Dept. of Labor (DOL) showing that there are no available, qualified U.S. workers to do the job offered the FN.
  • Labor certification can be accomplished using generic jobs and advertising, known as “Reduction in Recruitment (RIR).”
  • Labor certification requires certain wage rates, geographic locations and skills. If any of these change, the employee will usually need to start over with a new labor certification.
  • A few employment-based cases do not require labor certification, in which case the employer initiates the case at the I-140 stage.
2. All employment-based cases require an Immigrant Visa Petition (I-140) to be filed by the employer to determine what preference category the FN will be in.
  • The employer can only file the I-140 after labor certification is approved by DOL.
  • If the job requires a Master’s degree or higher and the FN had that degree when he/she began the job, the FN will be 2nd preference.
3. All employment-based cases require an individual application to adjust status to that of permanent resident, known as AOS.
  • The applicant can only file for AOS after the USCIS approves the employer’s I-140, and the employee’s priority date is current.
  • AOS includes a separate application for Employment Authorization Document (EAD) to ensure right to work.
  • AOS includes a separate application for Advance Parole (AP) to ensure right to travel.
  • The AOS application focuses on whether the FN is excludable for some personal reason.
  • It includes detailed background information and documentation about the individual, including medical exams, fingerprints, birth certificates, etc.
  • AOS is normally filed at USCIS Service Center where the employee lives.
4. The time line for the typical process is as follows:

RIR Labor Certification (Filed with DOL)
6-18 Months
(DOL Regions Process times vary and slow downs are common due to work load/resource allocations by DOL).

 

I-140 Immigration Visa Petition (Filed with USCIS Regional Service Center)
4-12 Months
(USCIS time varies based on preference petition category and geographic location).

AOS Adjustment Of Status (Filed with USCIS Regions Service Centers)
8-36 Months
(USCIS time varies based on priority dates and workload/resource allocation by USCIS).

RECRUITMENT EFFORTS AND RESULTS FOR YOUR POSITION

While the DOL looks to your original date of hire for some purposes, it looks to the date of the filing of the labor certification for others, including the recruitment requirement. Initially, the DOL does not require that your employer show recruitment for your position at the time of your initial hire, because you were hired as an H-1B temporary worker. Now that your employer has decided to pursue a labor certification for you, the DOL considers that a “real” position for which U.S. workers should be considered.

Labor certifications are now filed under the PERM process directly with the Federal DOL in Atlanta. The U.S. employer will comply with the DOL’s very specific recruitment instructions during the six months prior to the filing of the labor certification. Finally, once recruitment is conducted, your employer will review resumes to determine if any of them should be reviewed by your manager. BY LAW YOU ARE NOT PERMITTED TO PARTICIPATE IN THIS PART OF THE PROCESS. If no qualified applicants are identified, we will file the application with the DOL. This proof must include print ads, internet ads, and an internal posting for 10 business days. if the application is not selected for an audit or an audit has been received and reviewed, the DOL will certify the PERM application.

LABOR CERTIFICATION APPLICATION PROCESSING UNDER PERM

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This memorandum summarizes the labor certification process and identifies the steps we need to take in order to prepare the Labor Certification Application, and ultimately obtain the “green card” (lawful permanent residence).

In order for an employer to obtain an immigrant visa for an employee (as a sponsor), United States law requires that the employer apply for a certification from the Department of Labor (“DOL”) that there are no U.S. workers qualified to fill the foreign national’s position and that the employment will not adversely affect the wages and working conditions of U.S. workers in similar positions. This “labor certification” process is accomplished by recruiting to fill the open position and filing an Application for Alien Employment Certification (ETA 9089) with DOL.

The labor certification is the first in a three step process to becoming a legal permanent resident that involves both the Department of Labor (DOL) and USCIS. The law requires that the foreign national be employed by the petitioning employer at the time of granting of legal permanent residency. There are, however, some exceptions to the rule that also depend on the timing of the departure. If the foreign national leaves his/her employer or makes a significant job change with the same employer, the process may have to be started all over again.

The law requires that the employer file a labor certification application on the employee’s behalf with the DOL. That application must satisfy the DOL that there are no minimally qualified U.S. workers who could perform the employee’s job, as it existed when the employee began employment with the employer. To satisfy these requirements, our preparation of the labor certification will focus on four areas:

  • The skills necessary to perform the employee’s job
  • How the employee acquired those skills prior to joining his/her current employer
  • How the employer recruited for the employee’s position
  • Whether there were any qualified applicants for the employee’s position

The Labor Certification application is a process in which the employer will have to recruit for this specific position. The employer must show the Department of Labor (DOL) that the company has engaged in substantial recruitment for similar positions immediately preceding the application for labor certification. Companies can establish a pattern of recruitment by submitting copies of print advertisements, Internet listings, headhunter information, and other relevant recruitment efforts. Finally, once recruitment is conducted, the employer will review resumes to determine if any of them should be reviewed by the foreign national’s manager. We assist the employer during this process. BY LAW THE FOREIGN NATIONAL IS NOT PERMITTED TO PARTICIPATE IN THIS PART OF THE PROCESS. If no qualified applicants are identified, we will file the application with the DOL electronically.

The labor certification process requires payment of certain wage rates, depending on geographic locations and the job skills required. If any of these changes significantly, the employee may need to start over with a new labor certification.

The Department of Labor now requires that companies pay at least 100% of the prevailing wage as determined by the DOL for the specific position, duties, requirements, and work location. The company will need to show that it has the ability to pay the employee the wage from the time of filing of the Labor Certification.

The labor certification will be filed electronically after all recruitment has ended. The anticipated processing time frame for approval is approximately 4 months. As noted, the company will be required to conduct a recruitment process. The company is required to comply with the following recruitment processes, which can all be done simultaneously:

  1. In-house notice of posting for 10 consecutive business days;
  2. Job Order with the SWA (State Department of Labor) for at least 30 days;
  3. 2 Sunday advertisements in a major local newspaper;
  4. Posting on all in-house media (company’s intranet, etc.) normally used to recruit for this type of position; and
  5. If this is a professional occupation or one that requires a minimum of a bachelor’s degree, 3 additional advertisements selected from the following list:
    • employer’s external web site;
    • other job search web site (such as the newspaper’s web site, Monster.com, Hotjobs.com, Jobvertise.com, etc.);
    • job fair;
    • on-campus recruiting;
    • trade or professional organizations;
    • private employment firms;
    • employee referral program with identifiable incentives;
    • Notice at campus placement (for positions requiring only a degree);
      • local and ethnic newspapers (for specific jobs only);
      • radio or TV ads.

Once the series of advertisements has run, we must wait thirty days (the “recruitment period”) before the ETA and recruitment results can be submitted to the DOL, where the decision on the labor certification is made. The employer is required to keep documentation of the recruitment results and a copy of the certified Labor Certification at the work location for a period of at least five years.

Applicants responding to the advertisement will be directed to send their resumes directly to the employer. Any qualified, available U.S. worker who responds to the advertisement must be rejected only for acceptable, job related reasons. It is not enough that the foreign national is the most qualified applicant; if any U.S. worker with minimum qualifications applies for the position, failure to offer the position to that U.S. worker will result in denial of the labor certification application. Often, many applicants will not have the minimum qualifications and may be rejected without an interview. The employer must submit all of the resumes to the DOL and keep detailed written records to document that the applicants did not have the minimum requirements. We assist the employer in these review procedures because DOL has a rigid practice as to format.

The employer may reject a U.S. worker on the basis of his or her resume only if it clearly does not meet the minimum qualifications set forth in the job description in the ETA form. Therefore, if the resume is inadequate for that purpose, the employer must occasionally interview applicants. The employer must document the reasons why the U.S. worker does not meet the minimum requirements, as well as every contact made to/from the U.S. worker.

While it is extremely important to ensure that the minimum requirements are reflected in this application, it is at the same time important to remember that the company must be able to demonstrate the “business necessity” of its requirements for the position. To establish the business necessity of a particular job requirement, the company must demonstrate that the job requirement is essential to perform the required job duties in a reasonable manner. It is not sufficient to show that the requirements merely enhance the efficiency and quality of the company’s work. Therefore, we should endeavor not to include any requirement which the DOL may regard as excessive, which we will have difficulty justifying, unless you are convinced that the absence of that requirement would result in an applicant’s being deemed to qualify when in reality he ore she could not perform the required duties.

As a general rule, the DOL regulations prohibit the company from requiring that a U.S. applicant have any experience or qualifications which the prospective employee did not have at the time he/she accepted the job. The reason is that if company hired the individual and trained him/her to function at the current level, the company could also hire a U.S. worker and provide similar opportunities.

After DOL reviews the completed application, the employer and/or the attorney will receive a decision. If an application is complete and not selected for an audit, the application will be certified and returned to the employer for signature. If the job is considered unusual; for example, requiring an odd combination of skills, the employer may receive a denial. If an application is selected for audit, the employer will be notified and required to submit documentation specified in the regulations to verify the information stated in or attested to on the application. Upon timely receipt of an employer’s audit documentation, it will be reviewed by the DOL. If the employer does not submit a timely response to the audit letter, the application will be denied.

If the response is complete and consistent with the employer’s statements and attestations contained in the application, and not deficient in any material respect, the application will be certified and the employer will be notified. If the audit documentation is incomplete, is inconsistent with the employer’s statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial will be issued to the employer. Only the Certifying Officer will have the authority to request additional information before making a final determination. Of course, we will assist the employer with preparing the response letter and supporting documentation to the Department of Labor.

Immediately after approval of the labor certification application we will prepare and submit an Immigrant Visa Petition to the Immigration Service on behalf of the foreign national employee. Processing time for the petition is about 120 to 360 days. Upon notification that the foreign national’s priority date is current, we will prepare and submit the Applications for Permanent Residence (“green card applications”) for the foreign national and his/her family. Employment and travel privileges are available to the foreign national employee and each family member during the pendency of the green card applications.

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.

LABOR CERTIFICATION CHART

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LABOR CERTIFICATION
No Qualified Applicants for the Position
Federal Department of Labor
PERM
4- 7 months

IMMIGRANT VISA PETITION
Citizenship & Immigration Service— CIS Service Center
Confirmation that Employee is Qualified for the Position
3 to 8 months processing time

ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE
Citizenship & Immigration Service— CIS Service Center
Verify that you are Eligible (not excludable) to Immigrate to the United States
Medical Exams, Fingerprint, Photographs and Lots of Forms!
6 to 24 months processing time

SUPPORT DOCUMENTATION FOR LABOR CERTIFICATION APPLICATION

A. CORPORATE (Prospective U.S. employer):
  1. Certificate and Articles of Incorporation;
  2. Employer’s Federal Tax Identification Number;
  3. Current annual report and/or audited financial statement, or federal corporate income tax return;
  4. Lease or deed for business premises;
  5. Any available promotional pamphlets and brochures which describe the company and its various products, service, etc;
  6. A complete job description for the individual’s proposed position — including a list of all job duties; title of immediate supervisor, number and title of persons supervised, and annual salary and benefits information; and
  7. Full name and title of contact person at company who will coordinate paperwork and the full name and title of the company’s authorized signatory for documents.
B. INDIVIDUAL (Foreign national)
  1. Completed General Immigration Questionnaire and Completed Labor Certification Questionnaire;
  2. Photocopies of individual’s passport and those of his immediate family members who will accompany him to the United States;
  3. Individual’s resume, curriculum vitae, etc.;
  4. Photocopy of individual’s university or trade school diplomas and certificates, and course transcripts, if available;
  5. Photocopy of individual’s professional licenses, professional society membership certificates or cards, etc; and
  6. Any available reference letters verifying the individual’s prior work history.
If possible, English translations should be provided for any foreign language documents.

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.

 

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SECTION A

INFORMATION ABOUT FOREIGN NATIONAL
TO BE COMPLETED BY FOREIGN NATIONAL

Today’s Date:

1. Name of Foreign National Beneficiary:

2. Present Address of Foreign National:3. Telephone Numbers: (H) (W)

4. Type of Visa (if in U.S.):

5. Birth Date:

6. Birthplace: City or Town, State or Province, Country:

7. Present Nationality or Citizenship (Country):
8. Address in U.S. Where Foreign National Will Reside:

9. If Adjustment of Status Within U.S. Not Possible, Consulate Abroad Where Foreign National Will Apply for Immigrant Visa (City and Country):

10. Education as applicable:

Name and address of primary school and years attended:

Name and address of secondary school and years attended:

Name and Address of College or University:

Field of Study:
Number of Course Hours in this Subject:
Date Started: Month        Year
Date Left: Month        Year
Degree or Certificate Received:

Name and Address of College or University:
Field of Study:
Number of Course Hours in this Subject:
Date Started: Month        Year
Date Left: Month        Year
Degree or Certificate Received:

11. List any licenses or memberships in professional societies:

12. Prior work experience (starting with present position):
a.) Present employment (if current position is identical to proposed labor certification position, leave blank and continue to “b” below):
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment (including hardware and software, if applicable):

b.) Prior Employment:
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month        Year
Date Left: Month        Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment:

c.) Prior Employment:
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month        Year
Date Left: Month        Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment:

d.) Prior Employment:
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month        Year
Date Left: Month        Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment:

e.) Prior Employment:
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month        Year
Date Left: Month        Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment:

f.) Prior Employment:
Name and address of Employer:
Title of Job:
Dates of Employment:
Date Started: Month        Year
Date Left: Month        Year
Kind of Business:
No. of Hours per Week:
Describe in Detail the Duties Performed, Including the Use of Tools, Machines, or Equipment:

SECTION B

INFORMATION ABOUT EMPLOYER & LABOR CERTIFICATION POSITION

TO BE COMPLETED BY EMPLOYER

Today’s Date:
Name and Telephone Number of Person Completing This Part of the Form:
1. Complete Legal Name of Company Filing Labor Certification Application and any d/b/a:
2. Address:
3. Address Where Foreign National Will Work (if different than above):
4. Name, Title and Telephone Number of Person Designated By Employer to Act as Contact with Attorneys:
5. Name, Title and Telephone Number of Person Who Will be Signing the Labor Certification Forms:
6. Name, Title, and Telephone Number of Foreign National’s Manager:
7. Type of Business Activity conducted by Employer:
8. Work Schedule: a.m. to p.m.
9. Rate of Pay: $ per
10. Job Title of Position:
11. Describe in Detail the Job Duties of the Position. Do not use abbreviations. (The more specific the information, the better able we are to draft a successful certification petition):

12. Minimum Requirements (state in detail the MINIMUM education, training, and experience for a worker to perform satisfactorily the job duties described above):
A. Education:
Grade School: (Y/N)
High School: (Y/N)
College: (Y/N)
College Degree Required
(i.e.: B.A., B.S., M.S., Ph.D.):
Major Field(s) of Study(ies):

B. Vocational Training:
Type:
No. Yrs.: No. Months:
C. Experience. Is experience in the Labor Certification position required? If so, and the foreign national obtained this experience with the petitioning company, explain the business reasons which justify refusing to train a U.S. worker. If related experience will meet minimum requirements, see the next section.
D. Experience in Related Occupation (number of years of experience in related occupation necessary to perform the job duties of the labor certification position): Years Months
Name of this occupation:
Where/when did foreign national gain this experience:

How does this job differ from the labor certification position:

13. Special Requirements (list any tools, skills, fluencies, hardware, software, research methods, etc. necessary to perform the job duties of the position and where the foreign national gained this experience or knowledge):
1.1
2.2
3.3
4.4
5.5
6.6
7.7
8.8

14. Number of Employees Foreign National Will Supervise in Labor Certification Position:
Title of supervised employees:

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.


Department of Labor PERM Employer Registration for Electronic Filing

Department of Labor PERM Processing Times