Labor Certification / PERM

U.S. Permanent Labor Certification Attorney / PERM

The process for obtaining permanent residence based on employment is comprised of three phases: the labor certification (now known as PERM), the immigrant petition, and the application for adjustment of status. At the law firm of Ventresca & Ventresca, LLP, in Pittsburgh, Pennsylvania, our U.S. permanent labor certification lawyers have spent more than 20 years dedicated to helping our clients throughout the United States understand these phases and requirements.

Purposes of the Certification Procedure

The labor certification procedure is intended to assure that you are not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that you have not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers.

 

The Department of Labor (DOL) requires you to approach the process as though you are willing to hire an American worker if one is qualified and available, although it will not force you to hire such a worker if one is located. If a qualified and available American worker is located, you may not be able to hire the foreign national.

Changes in the Certification Procedure

The Department of Labor published the new PERM (Program Electronic Review Management) regulations on December 27, 2004. PERM is the DOL’s best hope in keeping the labor certification process (part 1 of 3 of the green card process) alive. Due to overwhelming backlogs and internal processing contradictions, Congress has replaced current labor certification process with a streamlined attestation process that places certain responsibilities on the employer and those U.S. workers who may be adversely affected by the importation of foreign workers. Resources will now shift from routine and unnecessary administrative screening and review of employer recruitment activities to reviews of challenged attestation complaints.

Highlights of PERM include:

1) Effective date is for all cases filed on or after March 28, 2005.
2) Fully 100% (rather than 95%) of the prevailing wage must be filed. New governmental surveys utilizing four skill levels, rather than two, will be used.
3) More extensive recruitment is required.
4) Processing time for electronically filed PERM is approximately 60-90 days.
5) Pending cases can be converted.

 

Cases Withdrawn and Re-filed 


 

The regulation allows for the withdrawing and re-filing of cases PRIOR TO PLACEMENT of a job order by the SWA. An employer that successfully withdraws and re-files a pending application WILL PRESERVE THE ORIGINAL filing date. Note however that ONLY applications which are withdrawn prior to the placement of a job order by the SWA may be re-filed under PERM’s new procedures within 210 days of the request for withdrawal so long as the re-filed application is for the ‘identical job opportunity.’

 

Cases Not Re-filed 


 

If an application has been withdrawn but not successfully re-filed, it will be treated as a new application. The application will be assigned a filing date as of the date of the new filing. This is risky because the re-filed application will have been prepared using the new PERM recruitment based on the old data form the prior application. If this is questionable, it may be strategic to the start the process anew.

 

Cases Not Withdrawn 


 

Pending applications which are not withdrawn will continue to be processed under the current rules in the backlog reduction centers and regional offices.

 

Understanding the Minimum Requirement for Employers

 

The first step involved in the process of sponsoring an employee for legal permanent residence is to obtain a prevailing wage from the Department of Labor for the offered position. Minimum requirements for most employers are established in vague or broad terms and are set at a basic level, in order to attract the maximum number of job candidates, giving the employer great flexibility in choosing the most qualified person among those candidates.

 

However, one requirement of the DOL is particularly worth explanation: that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one that meets the job’s minimum requirements.

 

Therefore, for purposes of this application it is very important to define the threshold point above which the employer is actually willing to hire any job applicant – that is, the employer’s actual minimum requirements for the job. As you can see, what the DOL means by minimum requirements is quite different from the requirements set by employers in their own normal hiring procedures. The employer must carefully define the job duties, and think through all of the alternative combinations of experience, education, training, and special skills with which job applicants can perform those job duties.

Recruitment under PERM

Once the job duties and requirements have been defined, the employer must partake in an extensive recruitment process. Recruitment now requires:

a. An employer on-site job posting (for ten consecutive business days)

b. An employer placed job order with the SWA (State Workforce Agency) for 30 days

c. An employer placed job advertisement on two different Sundays in a newspaper of general circulation (ads must be more than 30, but not more than 180 days before filing)

d. At least three of the following recruitment methods:

 

  • job fairs
  • employer web site
  • job search web site other than employer’s
  • on-campus recruiting
  • trade or professional organizations
  • private employment firms
  • employee referral program with incentives
  • a notice of job opening at a campus placement office
  • local and ethnic newspapers
  • radio and television advertisements

Note that recruitment listed in a, b, and c was the norm for labor certification. PERM now also requires Item d.

Evaluating Job Applicants after the Interviews

Once the interviews are complete, Ventresca & Ventresca, LLP, can help you in the evaluation of the recruitment results. U.S. job applicants can be rejected only for reasons that the DOL considers “lawful” and “job-related.” Our visa immigration lawyers will explain what those terms mean, and assist you in the preparation of a recruitment report explaining why each job applicant was rejected. This report, however, must come from you. When the applicant has completed documenting all recruitment methods and final interview results, we file a labor certification application with the DOL.

 

Only after these steps have occurred will a final decision on the application be made in up to 90 days. Although our labor certification attorneys will do everything possible to make the process as painless as possible for you and to assure that it causes minimum disruption to your business, your active involvement, interest, and cooperation throughout the process is necessary for the successful conclusion of the case. Our Pennsylvania law firm is proactive and will identify problems up front. Common problems / issues include those related to the prevailing wage, experience gained on the job, education level required, and special requirements. We will work with you to resolve any problems early in the process.

 

Contact our United States PERM Immigration Lawyers

To set up an appointment for more details on how we can help you, contact our U.S. permanent labor certification attorneys today at Ventresca & Ventresca, LLP.