- Q: What are some factors that may influence the PERM Labor Certification outcome?
- Q: How can I determine a potential employer’s ability to pay the agreed wage for a PERM application?
- Q: How do I best prepare for the PERM Labor Certification application and employer registration?
- Q: What are the necessary requirements for a PERM Labor Certification?
- Q: What are some of the remedies for a PERM denial that has resulted from DOL mistakes?
- Q: What are the bona fide job specifications for PERM?
- Q: What happens if the employee is laid off? Is it time to withdraw the PERM application?
- Q: What is my employer supposed to do prior to labor certification under PERM?
- Q: What is the impact of PERM regulations on the EB-2 and EB-3 decisions?
- Q: What is the process for filing an application for PERM?
Q: What are some factors that may influence the PERM Labor Certification outcome?
A: The following are factors that can have a direct impact on the PERM Labor Certification outcome. Despite the fact that an attorney can take charge of virtually all paperwork, it is crucial to have at least one cooperative employer to help the attorney. Working together with your attorney will help him or her in obtaining the right information.
- It is crucial to describe and have the relevant job qualification specifications – this is very important and is never something that you can amend once you are done with the process of recruitment. Also, this can make a huge difference in determining whether or not the PERM Labor Certification application is accepted or denied;
- Whether or not employers have laid off their employees within the previous 6 months before submission of the PERM application is done can impact the application;
- The ratio of U.S. workers to that of foreigners may also impact the employer’s workforce. Notably, a U.S. worker implies any citizen in the United States with a U.S citizenship, a green card, or with other permanent or semi-permanent status;
- The wage/compensation being offered. Also, you may never have an opportunity to amend wage issues once the process of recruiting has been marked as complete. It is one of the factors with huge impacts and may end up determining whether or not the PERM application is accepted or denied. So, just like the other factors listed above, this one should also be taken seriously.
- Currently, the economic climate of the U.S. may impact the outcome of the PERM application due to a shortage or surplus of job candidates within the local area.
We strongly recommend that you retain legal representation. The reason behind this is that, due to the various nuances involved in the filing PERM Labor Application, you may need the representative to help explain some of the issues. Most employers have the option of applying for services of attorneys for representation in the entire process of PERM Labor Certification. Also, attorneys help in the preparation of several forms, applications required and other necessary documents that you as employers may not have the potential of handling them as required.
Although employers are supposed to have their own online accounts, they can also create sub-accounts for their attorneys. Only the employers and not the foreign employee are required to pay the attorney for the services offered. This PERM Labor Certification process may be very time-consuming and complicated.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: How can I determine a potential employer’s ability to pay the agreed wage for a PERM application?
A: One of the most important things that any employer must be prepared to do is demonstrate as well as reveal his or her capability to pay any agreed salary/wage that has agreeably been offered to the foreign worker. It is essential that the employee knows that he/she will be compensated for the services that he/she offers. This kind of wage is known as “the proffered wage” offered at the point of filing the Labor Certification. Also, the employee should work to maintain the ability to pay the alien without fail throughout the entire immigration petition exercise until the foreigner receives his or her green card. The ultimate decision on the employer’s ability to pay the candidate lies in the hands of the USCIS at the point of filing the I-140. Also, the Department of Labor (DOL) reserves the right to request the sponsoring employer to prove that he/she can actually pay the employee as agreed.
The list below will help you find out if your employer will have the ability to pay the proffered wage. If he or she meets any one condition below, it is likely that he or she will:
- That the employer-petitioner paid the beneficiary fee, also known as the “proffered wage.” This is usually highlighted in employee W-2 forms whenever
- any alien individual is employed by a U.S. citizen, just like the case of L and H visa holding employees.
- That the alien employee’s net income is greater than or equal to the offered wage/salary in all the years that have been agreed upon.
- In case a company has over 100 employees, it can offer signed statements from the business’ financial officer. This officer is charged with a
- responsibility of certifying that the company of business in question has the capacity to pay proffered wages.
Notably, the employer is supposed to show this capacity to pay as soon as the PERM Labor Certificate is issued.
Despite the fact that financial documents are not necessary for submission of the PERM application, the USCIS still requires these financial statements during the petition process as proof of a capacity to and ability to pay. In other cases, USCIS may want to check and prove the employer’s ability further even after approval of the I-140.
The federal regulation demands that only given types of evidence be used when determining the employer’s ability to pay. There are just two ways that an alien can also use as evidence; discretionary and required. For discretionary, this evidence involves the use of bank account records, personnel records, and/or profits and loss statements. Whichever is appropriate to the USCIS will also be appropriate for you in making your judgment. In case the employer in question has over 100 employees, this evidence will be very valuable and will be sent alongside a statement from the company’s financial officer demonstrating this ability. So, careful determination of an employer’s ability to pay the proffered fee is an indication of the willingness to have you as part of his team.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: How do I best prepare for the PERM Labor Certification application and employer registration?
A: PERM labor certification applications are usually filed on the ETA 9089 form that clearly provides the requirements for the vacancy that the employer is intending to fill by way of hiring the immigrant worker. Virtually all applicants, inclusive of the foreigner being sponsored, have to meet all minimum requirements stated by the employer’s offer for filling the offer/position. Therefore, as mentioned above, winning the labor certification case solely lies on the manner in which the minimum qualifications are defined.
Employers may set a minimum number of years that any applicant must have in terms of experience in either a related job or the one being advertised. These requirements would therefore narrow down the number of individuals who qualify for the stated position. Several other requirements would also reduce the number of people applying for the said position. For instance, knowledge in certain machines, programming languages, and other techniques that require specialization may possibly be included, meaning only qualified people will want to send their applications.
There are well-established bodies of law that determine the extent to which any employer may be restrictive in his/her job requirements. Working with a qualified U.S. immigration attorney helps ensure that the employer’s needs are achieved and that the alien worker’s skills are within the strict boundaries of the employer and the law. A good attorney will work with both the employer and alien worker throughout the entire process of immigration.
All PERM Labor Certification cases must have this requirement – that the sponsoring employer pays the foreign worker the agreed or average wages for the job in question. The Labor Department applies a particular survey in the determination of the prevailing wage and can always be referenced as a source. In addition, the employer may decide to make use of a published wage survey in calculating the average or prevailing wage rate. Also, the information offered by both sides has to be that which can be accepted by the Labor Department. The reason is that advertisements will be made based on the said wage. No progress will be permitted in cases where the wages fall below the average or prevailing wage. The sponsoring employer is only required to pay the required wage once the foreign employee has successfully completed the process of immigration and has also received a green card, meaning permanent residence.
At the first stages of the PERM Labor Certification process, it is crucial to find letters that verify the foreign worker’s work experience plus an evaluation of any alien degrees. The USCIS will ask for these letters later during the immigration process. So, it is essential that they are an exact match of the foreigner’s skills, as reflected in the application.
Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.
Q: What are the necessary requirements for a PERM Labor Certification?
A: The process of PERM Labor Certification application has its own specific requirements that should be followed. They are briefly listed and discussed below.
Any employer who files a PERM application for an alien employee will be required to attest to the following conditions:
- The occupation has to be a full-time job that is located in the United States.
- The position has to be a bona fide one and made available first to U.S. workers.
- No job requirements or specifications should be altered, changed, or tailored in any way to meet the alien candidate’s qualifications. In essence, the employer in question is supposed to establish that his/her job opportunity is clearly described without any restrictive job specifications, unless it is adequately documented and there is evidence that arises from the business necessity that an alien is required.
- The wage/compensation offered must also meet the prevailing wage requirements by the state. This means that the job must be greater than or equal to the prevailing compensation/wage for the position/area that the employer has decided to fill. Any deviation will not be accepted.
- Employment of the foreigner will not in any way, slightly or adversely affect the compensation/wages as well as the working conditions of U.S. citizens.
Prospective Employee Specifications and Requirements
Prospective employees who intend to benefit from a PERM application have to attest to the following:
- He/she has to meet the necessary work and educational requirements of the employment occupation at the time of filing the PERM Labor Certification;
- He/she keeps a valid U.S. status if he/she resides in the U.S.
In PERM Labor Certification, the employer, usually a U.S. citizen, who sponsors is the petitioner whilst the beneficiary is the prospective alien candidate. In spite of not being explicitly allowed in the regulations and rules, the USCIS and the DOL informally permit the sponsoring employers to make applications for Labor Certification alongside filing an Immigration Petition on the grounds of prospective job employment.
No employer is allowed to transfer any expenses incurred in the process to the foreign candidate. DOL regulations demand that employers get disallowed from receiving any money, inducement or incentives of any form or kind to reimburse, inducement to file or even as expenses for filing the Labor Certification process. This also includes the attorney’s fees. Also, no employer is allowed to deduct the costs from the foreigner’s salary, benefits, or wages.
Q: What are some of the remedies for a PERM denial that has resulted from DOL mistakes?
A: In the event that your PERM petition is unsuccessful and the employer suspects that they denial resulted due to an error, he/she may then want to file an appeal. This kind of appeal is known as a Request to Consider (RTC). A RTC is an appeal request that is sent to the certifying officer in order to reconsider accepting the application request. The certifying officer will then reconsider the appeal on grounds of the arguments provided by the petitioner.
This kind of appeal can only work in the event that the petitioner has supportive evidence backing his/her request. The evidence has to be part of the Certifying Officer (CO)’s decision and that the petitioner lacked an opportunity to present it amicably. Also, there exists the alternative of the Motion to Reconsider whenever there is a denial resulting from a government error/mistake, such as when the CO incorrectly enters information or fails to acknowledge that he/she received audit documents.
One other common type of appeal is known as Request for Review (RFR). In this case, the board, Alien Labor Certification Appeals (BALCA), is charged with the responsibility to review decisions made by the Certification Officer on grounds of previous case law or other regulations. Once the cases have been submitted to the BALCA for reviewing, new evidence will not be given consideration. Both of these appeals are all potential remedies to the petitioner. However, they take longer and may extend the period that the PERM process should take.
In the event that employer believe the denial was as a result of the DOL’s system or maybe misjudgment by the DOL officer, the employer may proceed to filing a petition or motion to have the process reconsidered. Then, then request for appeal should not take longer than 30 days, beginning the date that the decision was made.
At times, it may be necessary to go with the denial decision and then re-file the PERM petition. This will help cut short the long process that the appeal will take. Unless the non-immigrant visa issues are pressing and require approval immediately, this appeal route is not recommended, however. This PERM process can turn out to be time consuming and very hectic. It is therefore recommended that you find legal experts to help you walk the path successfully from start to finish.
Q: What are the bona fide job specifications for PERM?
A: DOL applied PERM rulemaking to classify a few rules on the capabilities that would be considered as real and which ones would not be permitted, and to make some improvements to those guidelines. These regulations involve:
- When employers can make use of capabilities in excess of what DOL considers as "ordinary/normal" qualifications for the occupation;
- When employers can call for the experience that the foreigner has massed whilst working with the sponsoring contractor/employer;
- When the sponsoring employer may apply or use “different” specifications for a position in order for the foreign worker to be viewed as the best fit for
- the occupation;
- When the Certifying Officer may overrule the sponsoring employer’s determination that the United States worker is not fully qualified in light of the fact that the applicant would only become qualified after undergoing on-job training.
In respect to the issues of what job specifications will be assumed as “normal,” the DOL initiated a concept known as “business necessity” into the prevailing PERM regulations. DOL will obviously disallow the application of job specifications that surpass the requirements for a job position as described in their Standard Occupational Classification (SOC) system. In this case, the exception would only be for specifications that the employer can reasonably justify that they are related to the job and therefore necessary for performance of the job roles for the employer’s operation. This deviation ability from the Standard Occupational Classification will be essential, since the system groups the jobs into way fewer groups than the DOT (Dictionary of Occupational Titles) application in measuring normal position requirements.
The PERM rule allows an employer to proceed with the application of the experience gained by the foreign worker with the contractor or employee/petitioning employer. However, this only applies in cases where the experience was as a result of a job that was not “sufficiently comparable” to the occupation included in the Labor Certification. The rules have a new kind of bright-line test, which depends only on a comparison of the two job roles of the two vacancies and not merely the recruiter’s organizational structure or the salary levels of other previous job positions. Under this, prior positions will be considered sufficiently comparable if there is at least a 50% similarity in the roles of the two jobs.
Conclusively, and most importantly, the new rules permit the Certifying Officer to exchange his /her judgment with the employer and also determine that the applicants who failed to meet the requirements were, nonetheless, up to the task by a combination of education and experience, or could perhaps become better qualified for the position if put through a reasonable training period targeting the job specifications.
Q: What happens if the employee is laid off? Is it time to withdraw the PERM application?
A: Sometimes, issues may arise that prompt laying off an employee. For instance, the major issue that leads to layoffs is problems with a company’s budget. However, you never rule out the possibility of hiring him/her again in the future in case circumstances change for the better. The question then comes – is it time to withdraw the PERM application or wait. Also, this becomes a channel to many other questions. For instance, you may also be prompted to ask if, while filing an immigration benefit like a petition, change of status or visa, the employee will need to answer “yes” to the question asking him if an immigration petition has ever been filed in his case. Also, one other question that has to be answered is whether submission of LC/PERM implies filing an immigrant petition.
There is no rule that requires any employer to withdraw PERM applications on account of layoffs. This is because the sponsoring employer still has an intention to rehire him/her again sometime in the future. When you file the PERM application, if you were careful enough, you noticed the USDOL aspect. When you signed it, you asserted to this under the penalty of perjury.
This assertion stated that you have the capability as well as sufficient funds available for paying the salary or wage that you willingly offered to the foreign employee. Also, you asserted that you have the capability of placing the individual on payroll before or on the date that the alien is allowed into the United States. Both of these statements were true at the time of filing the PERM application. This means there was adherence of the law to the letter. What now after circumstances have all changed?
Is this the time to proceed into withdrawal of the employee’s PERM application? The answer is that there is absolutely no rule or law specifying withdrawal of the application. Being in possession of PERM applications allows the employers opportunities to continuously extend the H-1with any foreign employee hired beyond 7 years.
The government may decide to take the stand that that your PERM application is now null and void on the basis of two factors. One of the factors is that you are no longer in a position to employ the foreigner, hence no open job (which is a continuing requirement). Second, you were faced with a problem and are therefore not able to pay the agreed wages or salary to the employee, which is also a continuing requirement. You could end up losing the green cards on both grounds mentioned. The remedy therefore lies in letting the PERM application remain in a pending status. There is nothing wrong with doing so unless you receive an audit request by the USDOL.
Q: What is my employer supposed to do prior to labor certification under PERM?
A: Before any employer submits applications for labor certification, the first thing that is required of them is advertising for the position. The position has to be related to the subject of labor certification. After this, he/she will proceed to conducting the recruitment process of U.S. citizens by adhering to a specific set of mandatory posting requirements and recruitment steps. These posting requirements include getting a prevailing compensation determination for the position in question available from the Department of Labor (DOL).
Afterwards, the employer needs to place the job request with the State Workforce Agency (SWA) that runs two print advertisements every Sunday. These advertisements will have to define the job specifications, and for professional/expert positions, performing some extra types of recruitments. They must be made in a daily paper that has a good general flow of readers implying more chances for the appropriate and potential readers coming across them. Also, the newspaper is supposed to be an appropriate one taking into consideration the requirements by the state employment office in the area of intended job employment. However, there is an exception in the event that the target Sunday edition newspaper is not available in rural areas.
Also, the employer has to post notifications to the target workers that labor certification applications are being filled for the said position. It is required that these processes and steps be carried out 30-180 days prior to filing the application for labor certification. In the case of jobs requiring experience and an advanced degree, the second Sunday advertisement can be replaced by an ad in an appropriate professional journal, although this is not required.
Employers intending to recruit for purely professional positions, characterized under PERM as those targeting individuals with college or higher degrees, have to engage in three extra recruitment steps before the process of filing the application. Satisfactory recruitment channels for professional vacancies include:
- The employer Internet websites;
- Referral programs for employees with compensation;
- Job fairs;
- On-campus recruitment;
- Job search sites, including the Internet versions of Sunday newspaper print advertisement;
- Private employing agencies;
- Professional or trade organizations;
- Campus job placement offices, particular for position requiring a degree without experience;
- Ethnic and local newspapers; and
- Television and radio advertisements.
In the event that the employer does not find the required or qualified U.S. permanent resident/worker through the just concluded recruitment process, he/she is then allowed to submit an application for PERM certification. While filing this application, an attorney and the employer submit the ETA 9089 form either via mail or the internet for foreign candidates.
Q: What is the impact of PERM regulations on the EB-2 and EB-3 decisions?
A: PERM regulations and conditions require that, in the event that an individual needs qualifications that are way higher than those provided in the Specific Vocations Preparation (SVP) or the OES Job Zone level, then the employer may have to provide business necessity justifications on the same.
An OES Job Zone has up to 5 levels whereby Job Zone 5 and 4 are the most relevant in the case of PERM applications. Each application or any application that is similar to it can be classified among various other levels. So, in order to find a job that really matches your qualifications, you have to match roles to the same occupation in their OES database. After this, you can then find out the job zone to which your particular job falls. For instance, computer programmers have been grouped under Job Zone 4. Most jobs that fall under Job Zone 4 ideally require people who possess a Bachelor’s degree. Any position that is grouped under Job Zone 5 will demand a Bachelor’s degree and an advanced degree to accompany it. This particular grouping of jobs is somewhat similar to the Standard Vocational Preparation (SVP) level accorded to each and every job or position.
For instance, the Job Zones of level 4 require positions that have a higher SVP of 7, while those of Zone level 5 have an even higher SVP of 8. As per the DOL, a job with an SVP of 7 is one that requires highly trained people, good education, as well as more than 3 years of working experience. On the other hand, an occupation with an SVP of 8 requires an experience of not less than 4 years and a maximum of 10 years with training and education combined. This is the manner in which the DOL easily differentiates all the 5 Job Zone Levels. For a job order to be marked as normal, it has to conform to both SVP and Job Zone Level requirements.
Job Zone Levels have a direct impact on the choices that individuals make when choosing between an EB-2 and EB-3 occupation. For instance, the occupations for a computer software engineer and a computer programmer all fall under Job Zone 4. In the event that employers require an individual with a master’s degree for the occupation of a computer software engineer as a requirement to file EB-2 petitions, the DOL may have to challenge the employer in that the requirements are restrictive because they surpass Job Zone 4 level requirements. In this case, the employer will have to provide evidence and documentation that justifies the company’s necessity for higher requirements.
Q: What is the process for filing an application for PERM?
Application process: The employer is required to first complete an Application for Permanent Employment Certification (PERM), ETA 9089 form. The completed application form will fully describe in detail all the job requirements, educational requirements, duties, training, experience, among other special skills that the employer looks for in foreign candidates.
Signature requirement: All applications submitted via mail have to contain an original signature from the foreign worker, employer, and even the preparer, where applicable, once they are received by the NPC. All the applications electronically filed have to, upon receiving the labor certification given by ETA, be immediately signed by the foreign worker, employer, and the preparer, where applicable, to prove validity.
The Prevailing wage: Before filing of the ETA 9089 form, employers must submit a request to obtain the prevailing wage determination by the National Prevailing Wage Center (NPWC). Employers are also supposed to include NPWC information provided on the ETA 9089 form, such as the prevailing wage track numbers, the prevailing wage itself, the SOC (OES/ O*NET) code, skill level, the occupation title, the job determination date, the wage source, as well as the expiration date.
Pre-Filing Recruitment Procedure: Every employer filing the ETA 9089 form (with an exemption of applications that involve sheepherders filed under 20 CFR §656.16 and Schedule A occupations) should attest, apart from the number of other required specifications of employment, to having performed recruitment before filing the application.
Requests for information/Audits: It may not be necessary to file supporting documentation alongside the ETA 9089 form. However, the employers must provide the necessary supporting documentation in case the employer's application is chosen for audit purposes or in the event that the Certification Officer otherwise requires it.
Retention of records: All employers are supposed to retain copies of PERM application certification as well as all the supporting documentation for at least five years counting from ETA 9089 form filing date. For instance, the NPWC’s prevailing wage determination documentation should not be submitted alongside the application.
Online form filing: The employers have the option of filing the applications electronically (via web-based instructions and forms) or simply by mail. However, the DOL insistently recommends that they file them electronically. By nature, not only is the electronic filing process faster, but also makes sure employers provide all necessary information. Another reason is that electronic applications cannot be submitted in case required fields have not been fully completed. Also, while completing the ETA 9089 form online, preparers are provided prompts that are meant to help you in making sure you have provided accurate data.
Registration: Electronic Online PERM systems require that employers set up their individual accounts. This assists them in the processing applications for PERM certification. Therefore, employers must first set up profiles by simply selecting appropriate profiles option in the online electronic system.
Approvals: In the event that the application goes through successfully, the ETA Form 9089 is then signed immediately by the Certifying Officer and afterwards sent back to the employer representative/employer who submitted the PERM application.