Permanent Residence Through Labor Certification Processing

This document will summarize the procedure to obtain U.S. permanent resident status using the labor certification procedure. On December 27, 2004 , the Department of Labor published the Program Electronic Review Management (PERM) regulation. This regulation became effective on March 28, 2005 .

There were certain advantages to filing under the pre-Perm regulations such as the job requirements may not fit under the new O*NET system, the possibility that a US worker could learn the duties and be able to perform them within a reasonable period of time, the employer did not want to engage in extensive recruitment required under PERM or just the fear of a new process which none of us were sure would work as promised.

The regulations permit that a pre-PERM labor certification may be re-filed under PERM and the original priority date retained under limited circumstances. Re-filing is an option until a job order has been placed with the local SWA under supervised recruitment. To re-file under PERM all of the recruitment requirements of PERM must be met. The new filing must be for an “identical job opportunity.” The Department of Labor seems to have a strict interpretation of this wording. This has become a reason that many employers opt not to re-file under PERM. Before undertaking re-filing an Employer must evaluate the risk and consequences. Most workers want to re-file because of the faster processing times. This is more for the worker's benefit than the employers. With the regression in priority dates, an adjustment application may not be available for concurrent filing with the visa Petition upon approval of the labor certification.

In order to re-file the previous labor certification must be withdrawn. The new filing must occur within 210 days of the withdrawal. Any minor modification or variation from the originally filed labor certification will result in a denial of the re-filed application and will be processed as a new filing. If the original labor certification is being used to obtain 7 th year extensions of H-1B status it is not wise to engage in a re-filing since it is not certain that you will then be able to obtain additional extensions of your H-1B as a result of the denial. According to DOL, the backlog will be eliminated by September 30, 2007 . We recommend that careful consideration be given to the re-filing process especially in light of reported denials because of system errors.

    I.  INITIAL PERM FILING

PERM eliminated the 5% deviation from prevailing wages although the prior practice of paying the prevailing wage until the time of permanent residence continues to exist. On March 8, 2005 the DOL issued policy guidance in determining prevailing wages under the new four tiered wage system. It takes DOL 34 pages to describe a six step method for analyzing a job and determining the appropriate level. It is extremely important that you note that validity date on the prevailing wage. Although the regulation appears to say you must file within the validity period, DOL guidance seems to allow recruitment to begin during the validity period.

Recruitment requirements for professional and non-professional positions are different. The mandatory recruitment steps require two Sunday newspaper advertisements placed between 30-180 days of filing the application. (For an advanced degree professional positions a journal may be submitted in lieu of a Sunday ad) In addition there must be a job order placed with the State Workforce Agency for a period of 30 days which must be complete at least 30 days prior to filing the application. In addition although not considered recruitment a notice of intent to file a labor certification must be posted for 10 consecutive business days or notice must be given to a bargaining representative.

For professional positions there are ten alternative sources of recruitment and an employer must choose three from the following list:

• Job Fair
• Employer Web site
• Job Search web site
• On campus recruiting
• Trade or professional organizations
• Private Employment Firms
• Employee Referral
• Campus Placement Office
• Local and ethnic newspapers
• Radio and Television advertisements

Only one of the optional recruitment steps may be completed within 30 days of filing. In no event may any of the recruitment steps be more than 180 days from filing.

The regulations are very specific as to how the employer should document the recruitment steps. After recruitment is complete, a recruitment report must be prepared and signed by the employer. A person cannot be rejected for lacking skills necessary to perform the duties if the skills could be acquired during a period of reasonable on the job training. This is clear as mud…..

The actual application is filed electronically through the DOL website. An employer must register through the web site for filing. An attorney or employer cannot register a company. Immediately after filing, a verification e-mail will be sent to the employer to confirm they authorize the filing. Failure to respond will result in a denial of the application.

The most difficult part in preparing the application is determining the actual minimum requirements for the position since these are the requirements used to determine whether qualified U.S. workers are available. The employer cannot use the ideal requirements for a highly qualified candidate but one that is able to perform the duties in the normally accepted manor. The employer must not have hired workers with less than these stated minimum requirements. We cannot use experience a worker gained with the employer which we normally use in the real world unless we can show that the labor certification job is sufficiently dissimilar to the position in which the employee gained experience.

If the employer's requirements exceed the SVP or the requirements are not normal to the occupation as the position is set forth in O*NET, the employer must be prepared to present evidence of business necessity as to why for example a Masters degree rather than a Bachelors degree is essential to perform the job duties.

It is not acceptable to draft the minimum requirements to qualify your worker for the position particularly if the requirements are not the industry standard. For example, many computer professionals may have a degree in civil engineering and a number of years of experience in the IT industry. You cannot make a civil engineering degree the minimum educational requirement,

One other issue that has become problematic is alternative experience requirements must be substantially equivalent to the primary requirements for the job opportunity, If the worker qualifies for the position based on the alternative requirements then the Department of Labor requires that you must specify on the application that any suitable combination of education, training or experience is acceptable.

This is just a skeletal overview of the issues of concern. There have been a host of other issues which have arisen as PERM is less than one year old as of the time we write this outline.

The actual filing of the application establishes a priority date for purposes of permanent residence. The priority date establishes your place in line so to speak within a particular employment category. The numerical quota system utilized to issue immigrant visas is currently oversubscribed meaning for many categories there are more applicants than there are visas available. You can access the priority dates through this web site or go directly to the Department of State web site. The general rule is that you are charged to your country of birth not your country of citizenship. You may however be charged to your spouses country of birth to gain an advantage in processing times.

Once the labor certification is approved, the employer files a Form I-140 visa petition with the Service Center having jurisdiction over your place of employment. In support of this Petition we must provide evidence that the worker meets the particular job requirements. We will need detailed letters confirming dates of employment and the actual job duties. Appointment letters, H-1B approval notices or an offer of employment is not sufficient. It is important that the foreign worker understands that he or she must demonstrate that they qualify for the position. The employer must demonstrate the ability to pay the prevailing wage rate which we discussed earlier. If the employer is not working for you, you must provide tax returns or audited financial statements which show sufficient net income to pay the wage rate. Depreciation and other “paper” deductions cannot be added back to the net income to meet the prevailing wage requirements. This eliminates the ability of many smaller employers to file applications.

If the worker is currently employed, evidence of pay statements, W-2 forms and the employer tax return are acceptable. Companies with more than 100 employees may provide a letter from the Chief Financial Officer confirming the ability to pay in lieu of a tax return. If the priority date is current, the application for permanent residence may be filed concurrently with the I-140. If the priority date is not current, only the I-140 may be filed.

It is extremely important to maintain lawful non-immigrant status for you and your family members while you remain in the United States . Some workers will choose to Consular process rather than Adjust Status. You can read about both adjustment and consular processing under the “services” portion of our website.

One major reason workers choose to adjust status is to be able to take advantage of “portability.” Once the I-140 has been approved and the I-485 has been pending for more than 180 days, a worker may change employers providing he or she continues to work in the same occupational classification. Always seek legal advice before porting to another employer.

The total estimated processing times varies. The backlog in the priority dates and at various government agencies has grown to be out of control. As of the publication of this article, a coalition of corporations, universities and the American Immigration Lawyers Association are submitting a stand alone bill to the Senate. The bill is referred to as the “TALENT” bill. It has not yet been introduced. Subscribe to our newsletter for more information. The bill among other things would address the H-1B cap and revise the current employment based preference categories. More to come.

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