Perm and Labor Certification Updates

November 20, 2013

There are generally two ways of getting U.S. permanent residency. The first method is through a petition by a relative. The second is through a sponsorship by a U.S. employer. When an employer wishes to “sponsor” a foreign national for permanent residence in the United States, the first step is to file an application with the Department of Labor (DOL) for a permanent employment certification or labor certification. This certification means that there are no United States workers who are able, willing, and qualified for the position being offered to the foreign national.

The labor certification process was overhauled in 2005 and is now called the Program Electronic Review Management System or PERM. The purpose and goal of the labor certification process remains the same but the method by which to test the labor market and to prove compliance has been changed.

The employer must prove to the DOL that it has made a good faith effort to recruit U.S. workers, but that there are no U.S. workers available or willing to take the job. This is generally accomplished by advertising in newspapers in general circulation in the area of intended employment, by a job posting with the State, and by other means that are normal for the occupation.

The Regulations sets forth the means of recruitment in detail. The PERM process requires that all recruitment be conducted prior to filing the application and recruitment must be conducted within 6 months of filing.

Each filing requires the following recruitment:

1. A job order must be placed with the State Workforce Agency serving the area of intended employment
2. Two Sunday ads in a newspaper of general circulation.

In addition, if the job is considered professional, three more recruitment efforts must be conducted out of the following list of ten:

• Job fairs
• Employer’s web site
• Job search web site other than employers
• On-campus recruiting
• Trade or professional organizations
• Private employment firms
• Employee referral program with incentives
• Campus placement offices
• Local and ethnic newspapers
• Radio and TV ads

The application, which can be filed either electronically or by mail, must describe the job in detail, indicating the salary offered and describing the minimum qualifications for the position, as well as minimum education and experience and any special requirements. The DOL will approve the application, select the application for audit, or reject the application. Currently, the processing of the application takes about three months, if no audit is requested. If the application is selected for audit, the processing will take at least seven months.

The employer’s obligation is to make sure that all of the facts as stated in the application are true and correct and that they have backup documentation to support all of their recruitment efforts as well as a detailed description of the applicants for the position and why they were rejected.

Once the DOL approves or “certifies” the application for labor certification, the employer has six months within which to file an immigrant petition for the foreign national. This petition is filed with the U.S. Citizenship and Immigration Services. At this point, the employer must prove through documentary evidence that it is a qualified sponsor – that it has the ability to pay the wage offered; and that the beneficiary is qualified for the position that was certified.

The labor certification process may be initiated on behalf of someone who is not currently employed by the sponsor and for someone who is not present in the U.S. If the beneficiary is in the United States, the person that is being sponsored must maintain lawful status in the United States. Labor certification does not confer any immigration status on the beneficiary. If the beneficiary is present in the U.S., he must maintain some other status while waiting to apply for his green card.

The labor certification process/PERM can be very complicated and costly for someone not familiar with the rules. The denial rate of applications had been at a high 40% when the PERM started. The most recent DOL statistics show that during the last quarter of 2011, 23% of applications were either denied or withdrawn. Contact Lubiner, Schmidt & Palumbo for more information about PERM and to discuss your circumstances.