This memo provides information regarding employment-based immigration in the United States and the procedure for employers to sponsor foreign nationals for permanent residence.
In most instances, a foreign national seeking to obtain U.S. permanent residence through employment must be the beneficiary of an approved application for alien employment certification. This application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are immediately available to accept the offered position at the prevailing (or average) wage for the geographic area.
On December 27, 2004, the procedures for employers to sponsor foreign nationals for employment-based immigration changed as the U.S. Department of Labor (DOL) published the final regulation for the Program Electronic Review Management (PERM) system to streamline the labor certification application.
Role of Attorney in Process--Response to Fragomen Investigation
In response to the scandal and aftermath of the DOL's June 2008 announcement that it will be auditing all PERM cases filed by the law firm of Fragomen, Del Rey, Bernsen and Loewy, LLP, the DOL has released guidance on the parameters and important role an attorney plays in the PERM process.
See DOL Press Release
See DOL Guidance
It is unclear at this time the scope of the DOL's investigation into Fragomen, Del Rey, Bernsen and Loewy, LLP cases or the facts of alleged improper representation. SRW has reviewed this new guidance and confirms that our procedures and representation meet DOL requirements for the PERM process.
PERM, which took effect on March 28, 2005, includes the following process for filing a labor certification application:
The U.S. employer is required to obtain a prevailing wage determination (PWD) from its State Workforce Agency (SWA). SWAs will make PWD determinations based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located.
After obtaining a PWD, the employer is required to post a printed, internal job notice for at least ten consecutive business days. This notice must be posted between 180 and 30 days before filing the application. In addition to the job posting, the employer must use its standard in-house electronic and printed methods for advertising the position.
Other recruitment efforts that must be made before filing the labor certification application include placing a job order with the SWA and placing two Sunday newspaper advertisements. The SWA job order must be placed for a period of 30 days. The Sunday newspaper advertisements must be published in a newspaper of general circulation in the area of intended employment. The ads must be printed between 180 and 30 days before filing.
Additional recruitment requirements apply to employers seeking to hire someone in a professional occupation, which is one that requires a bachelor’s degree or higher. If the occupation qualifies as professional, the employer must undertake three recruitment steps in addition to the steps outlined above. The three steps must be chosen from the list provided in the regulations. The following venues are permissible for additional recruitment for professional positions: (a) job fairs; (b) the employer's web site; (c) job search web site other than the employer's; (d) on-campus recruiting; (e) professional or trade organizations, (i.e. placing an advertisement in their newsletter or journal); (f) private employment firms that conduct recruitment; (g) an employee referral program that provides incentives; (h) campus placement offices; (i) advertisement in local and ethnic newspapers; (j) radio and television advertisements, and (k) web page advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the application, however, only one of the three steps can take place within thirty days of filing.
In order to prepare the advertisements, care must be taken to draft an accurate description of the job as well as the skills, education and experience required in order to satisfactorily perform the duties. The advertised requirements for the position must meet two criteria. First, the skills, education and/or experience must be the actual skills, education and/or experience required to satisfactorily perform the duties of the position. That is, we cannot require that applicants possess certain skills or experience simply because the beneficiary of the PERM application possesses those skills or experience.
The U.S. Department of Labor has established guidelines for different occupational categories and these guidelines determine the amount of education and experience that can be required for a given occupation. Requirements that exceed the range established by the U.S. Department of Labor are considered “unduly restrictive,” meaning that the sole function of these requirements is to reject U.S. workers who are otherwise qualified for the position. An employer, however, may require experience and education in excess of the range established by the U.S. Department of Labor by showing “business necessity,” which means that the requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer.
Second, the beneficiary of the PERM application must have possessed the skills, education and/or experience being required prior to joining the employer. The employer, however, can require experience or skills obtained on the job if the employer can show that the position in which the skills and experience were acquired is sufficiently different from the position being applied for in the PERM application. A position is “sufficiently different” if the job duties are at least 50 percent different. An employer may also be able to justify “on the job experience” if it can be demonstrate that it is infeasible to train a US worker.
After the advertisements and job orders are placed, the employer will receive resumes from interested applicants. The employer must review those resumes to determine if there are any qualified and available U.S. workers who are willing to accept employment at the prevailing wage. Upon completion of this resume review and evaluation, and before submitting the labor certification application, the employer must prepare a recruitment report for its internal files. The report must document the recruitment steps undertaken and the results achieved. It must include the number of individuals hired and if applicable, the number of U.S. workers rejected, summarizing the lawful job-related reasons for their rejections. It is lawful to reject a U.S. worker for the position if he/she does not meet the employer’s stated minimum requirements. It is not lawful to reject a U.S. worker if he/she can obtain the required skill(s) after a reasonable period of on-the-job training. The employer must sign the recruitment report and retain all supporting documentation, including evidence of the advertisements and the resumes received in response to the recruitment effort, for a five-year period starting from the date of filing the labor certification application.
If the employer determines that there are no qualified and available U.S. workers for the offered position, then the recruitment has been completed and the Labor Certification Application, Form ETA 9089, can be submitted electronically. If the application is not selected for an audit, the DOL will certify (approve) it within 45 and 60 days from filing. A certified application must be immediately signed by the employer who will then submit the certified and signed application along with the immigrant petition to the U.S. Citizenship & Immigration Services (USCIS) to sponsor the foreign national for an immigrant visa.
If an application is selected for an audit, the employer will receive an audit letter from the Certifying Officer (CO) of the DOL asking the employer to provide certain documentation and specifying a reply date of thirty days from the date of the audit letter. If the reply date is not met or if the CO does not provide the employer with an extension, then the application will be denied. An audit can be triggered randomly or based on information provided in the employer’s PERM application.
Keep in mind that if the PERM application is certified and the employer wishes to proceed to the next step, filing the employment-based immigrant petition (Form I-140) with the U.S. Citizenship & Immigration Services, the beneficiary will be required to provide documentation to establish that he or she met the advertised requirements for the position on the date that the PERM application was filed. Accordingly, the beneficiary of the PERM application will be required to provide copies of college degree(s) with transcripts and employment confirmation letters that discuss the beneficiary’s role within the company and the skills used in carrying out specific duties.
To file the immigrant petition, the employer must also establish that it has the ability to pay the beneficiary of the PERM application at least the prevailing wage as determined by the formal PWD request. To meet this threshold requirement, the employer must provide copies of its corporate tax returns or an audited financial statement for the year when the labor certification was filed and subsequent years too. If the employer has over 100 employees, the USCIS may accept a letter from the employer certifying that it has the ability to pay the proferred wage.
The beneficiary of the approved PERM application is permitted to file his or her applications for adjustment of status (the application that grants permanent residence known as Form I-485), advance parole (travel document) and employment authorization concurrently with the employer’s immigrant petition. The beneficiary’s dependent family members (spouse and children) may also file concurrent applications for adjustment of status, advance parole and employment authorization. In order to file the applications for adjustment of status, advance parole and employment authorization, each applicant will be required to submit: (1) a certified copy of his or her long-form birth certificate that lists his or her full name and the full names of both parents; (2) original medical examination report completed by an authorized civil surgeon; (3) copies of the biographic and visa pages of his or her valid passport; (4) copy of the most recent Form I-94, Arrival Departure Card; (5) copy of all marriage and divorce decrees; (6) copies of the federal income tax returns for the principal applicant, with Form W-2, for the preceding three years; and (7) six passport-style color photographs of each applicant. In lieu of adjustment of status, the beneficiaries can also opt to process their green cards at the US Consulate in their home country.
Do note, though, that in the event of a backlog in the employment-based priority dates, the beneficiary and family members will not be able to file concurrent I-485 applications. They will need to wait until their priority date becomes current before they can file these applications. Similarly, they will also not be able to proceed overseas for consular processing of their green cards until their priority date becomes current.
We hope you find the above information helpful in proceeding with the PERM application. If you have any questions, please do not hesitate to contact us.
See PERM Processing Times