A PERM labor certification application imposes specific requirements on both the employer and the employee. The employer is the petitioner, and the prospective employee is the beneficiary.
The petitioning employer must prove the following:
-In other words, the employer must establish that the job’s requirements are not unduly restrictive, unless such requirements can be shown to arise out of business necessity.
-To satisfy this, the wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment. (In the past, U.S. Department of Labor (DOL) allowed for a 5-percent deviation; however, this is no longer permitted.)
Prospective Employee Requirements
The beneficiary must attest to the following:
Although not explicitly permitted in regulations, both DOL and U.S. Citizenship and Immigration Services (USCIS) informally allow sponsoring employers to apply for labor certification and file an immigration petition on the basis of prospective employment. Accordingly, whether the alien actually works for the sponsoring employer during the application process or after its approval does not matter. Further, the sponsoring employer does not necessarily have to continue employing the alien after a labor certification is approved. The foreign employee, however, should work for the sponsoring employer for a reasonable period of time after obtaining permanent resident status.
Since July 16, 2007, sponsoring employers have been required to pay all the costs associated with preparing, filing, and obtaining a labor certification. These expenses include those incurred during recruitment as well as attorney’s fees.
DOL rules bar sponsoring employers from receiving payment of any kind as an incentive or inducement to filing labor certification applications, and from recouping costs, including attorney’s fees, they expended while preparing for and filing an application. Petitioning employers are no longer permitted to transfer the costs incurred directly to the alien. Likewise, they cannot indirectly obtain reimbursement by way of deducting costs from the alien’s wages or benefits. The employer and alien must each pay their own attorney’s fees.
In 2011, in order to promote start-up enterprises, reduce barriers to full employment, and accelerate growth for businesses run by job-creating entrepreneurs, USCIS began an initiative allowing foreign entrepreneurs to apply for labor certifications under the EB-2 visa category. The long-term continuation of this project has yet to be determined.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.
For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links: