Q: What is the purpose of labor certification?
A: The purpose of the labor certification process is to protect the employment prospects and working conditions of U.S. workers. To obtain a labor certificate, a petitioning employer must prove to that there are no qualified, available, and willing U.S. workers for the position being offered to the alien. Specifically, the labor certification process requires the employer to test the local labor market to determine whether there are sufficient qualified U.S. workers, including both permanent residents and U.S. citizens, available to fill the proposed position. Only after the employer shows that it cannot find a qualified and willing U.S. worker to take the position being offered can the employer file a PERM application for an alien beneficiary who is qualified for said position.
Q: What is PERM labor certification?
A: PERM is the system used in labor certification applications. PERM was developed by the U.S. Department of Labor (DOL) to streamline the filing and processing of labor certifications for foreign workers, and went into effect on March 28, 2005. All labor certifications filed after this date are required to be filed in accordance with PERM regulations.
In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. workers, including U.S. citizens and permanent residents, are found during recruitment, then the employer can submit a PERM application. When filing, the employer or its attorney must submit ETA Form 9089 either online or by mail. The main distinctions between PERM and the previous labor certification process is that, under PERM, labor certification applications can be submitted online; most cases are adjudicated within a three-month timeframe; recruitment requirements are standardized (and more expansive); and no supporting documentation is required at the time of filing (however, if the PERM application is selected for an audit or review, then such documentation must be filed).
Q: What does PERM stand for?
A: PERM stands for Program Electronic Review Management.
Q: Which government agencies are involved in PERM labor certification applications?
A: DOL is the government agency involved. Unlike in the past, neither individual State Wage Agencies (SWA) nor U.S. Citizenship and Immigration Services (USCIS) plays a role in PERM labor certification process.
Q: What is USCIS?
A: The U.S. Citizenship and Immigration Services (USCIS) is the federal agency responsible for matters involving aliens in the U.S. Such responsibility includes jurisdiction over immigrant petitions, such as those requiring a labor certification, although DOL itself still oversees the labor certification process. Prior to March 2003, USCIS was called the Immigration and Naturalization Service (INS). For a brief period, it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. In our practice and online, we use the current accepted name: U.S. Citizenship and Immigration Services or USCIS.
Q: What does the Department of Labor do in the labor certification process?
A: DOL adjudicates PERM labor certification applications. State agencies no longer participate in the adjudication process.
Q: Who needs a labor certification?
A: A labor certification allows an employer-petitioner to file an EB-2 or EB-3 employment-based immigration petition on behalf of a foreign national employee. It is the first step for most EB-2 and EB-3 applications. In contrast, EB-1, EB-4, and EB-5 beneficiaries, National Interest Waiver applicants, and those seeking employment in Schedule A and sheepherder occupations are not required to file labor certification applications with DOL prior to filing immigrant petitions.
Q: Who is considered a qualified U.S. worker for purposes of a labor certification?
A: For purposes of a labor certification, a U.S. worker is defined as a U.S. permanent resident, a U.S. citizen, or other specially authorized alien (such as asylees or refugees) who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the labor certification application.
Q: Who is the petitioner in a PERM labor certification application?
A: Getting a PERM application approved must be filed by a U.S. employer, not by the foreign national employee. The foreign national employee is only the beneficiary of the application. The employer files the application on the alien’s behalf.
Q: Is there a difference between electronically submitting the application and sending it by mail?
A: Yes. Filing the application electronically will ensure that the application arrives at the Atlanta National Processing Center faster, resulting in an earlier priority date. Sending an application by wail will prolong the processing time, as the Atlanta center first has to physically receive it, and then a data entry clerk will thereafter have to manually enter the application into an electronic system. Once entered into the system, the mailed-in application receives the same automated analysis and manual scrutiny as an application submitted electronically would. If a case is filed by mail, then it is not unlikely that processing the application will take longer than two or three months. Ultimately, however, neither method of submitting an application for labor certification is necessarily more conducive to winning approval.
Q: Is the PERM labor certification process complex?
A: In a word, yes. A PERM application requires both substantive legal knowledge and practical experience. Further necessary is experience in dealing with recruitment activities, which are regulated by law. We recommend you consult with experienced PERM attorneys if you are interested in filing a PERM labor certification application.
Q: What does the employer need to do while the application is being prepared and processed?
A: Although an attorney can do most of the paperwork, the employer’s cooperation is necessary, as DOL requires some steps to be handled exclusively by the employer. In short, the employer will need to do the following:
Q: How long does the PERM process take from start to finish?
A: Usually, most PERM cases take around eight to 12 months total. The recruitment process, which includes designing the job description, obtaining a prevailing wage determination, interviewing applicants, and completing the recruitment report, has a typical duration of three months. From that point, the DOL review and adjudication process can last an additional three to seven months, depending on the number of pending cases at its processing centers. For more information on PERM processing times, click here.
Q: For how long is an approved labor certification valid?
A: An approved labor certification is valid for 180 days post-approval. USCIS will reject any I-140 filings made by employers after labor certifications have "expired." If a labor certification is filed in support of a Form I-140 petition within the 180-day validity period, however, it will remain valid for future I-140 petitions, too. So, if a labor certification is approved but a timely filed I-140 is denied, the labor certification will nonetheless remain valid indefinitely for the associated position. We’ve published an article on this subject that you might find worthwhile to read.
Q: How much does a PERM labor certification application cost? And who should pay for it?
A: A PERM application includes two major costs: advertisement fees and attorney’s fees. The cost of advertising for the available job position can vary from several hundred dollars to $2,000 or more, depending on the rate charged by newspapers in which job advertisements are placed. (For more information on attorney’s fees and filing fees, click here.)
As of July 16, 2007, employers have been required to pay all costs associated with preparing, filing, and obtaining a labor certification, including expenses incurred during recruitment and attorney’s fees.
Q: How much are DOL filing fees for a PERM application?
A: Zero. Unlike USCIS, DOL doesn’t charge a filing fee for this service.
Q: I just filed a PERM application and only now discovered that I made a mistake. Can I go back and correct this mistake?
A: Unfortunately, no. Once you’ve submitted an application, DOL considers it final, and you’re prohibited from making any changes. The only remedy available in your situation is to withdraw the application and submit a new one. Because such mistakes can be costly in terms of both expenses and time, we urge you to retain the services of experienced PERM attorneys. When you retain our firm, an individual attorney will prepare your case, and then one of our most senior lawyers will review it a second time before filing, ensuring your application is accurate and complete.
Q: Can a company apply for a PERM labor certification on behalf of a person who is not currently an employee?
A: Yes. A labor certification application addresses prospective employment. An alien worker is not required to work for the employer until he or she obtains a green card. Further, an alien doesn’t need to work for the sponsoring company while the company is petitioning for him or her.
Let’s illustrate this concept in a couple hypothetical situations.
HitSongz, a global entertainment company, has filed a labor certification application on behalf of Shakira. Shakira is a prospective employee who currently works as an audio engineer for Paper Planes, Inc., the company sponsoring Shakira’s H-1B visa.
When is Shakira required to work for HitSongz?
Not until her adjustment of status application (Form I-485) is approved. Up through that time, Shakira can continue working for Paper Planes, Inc.
Zayd is an analytics manager currently living in Hanoi. G&H, a media company, files a labor certification application on behalf of Zayd, who does not currently work for this company.
Is G&H permitted to file a PERM application on Zayd’s behalf?
Yes. Zayd is not required to work for G&H until he receives an immigrant visa through consular processing and relocates to the U.S. Before this time, it does not matter whether Zayd currently lives in the U.S. or whether he is a G&H employee.
Q: Does an approved labor certification give me the legal right to work in the U.S.?
A: No. An approved labor certification only allows your employer to file an EB-2 or EB-3 immigrant petition on your behalf.
Q: Does an approved PERM labor certification give me legal status in the U. S.?
A: No. It often will, however, serve as the foundation for a later filing that can afford you legal status in the U.S.
Q: What is the difference between a labor certification and a work permit?
A: A work permit, or Employment Authorization Document (EAD), is a form USCIS issues to aliens stipulating that they are eligible to work on a temporary basis in the U.S. In contrast, a labor certification does not give an alien authorization to work in the U.S.; it refers to future employment. A labor certification is the first step an employer must take to file an immigration petition on an alien’s behalf. The application, if successful, results in DOL’s approval of a position that an employer proposes an alien to fill. As such, it can be considered the basis of or a prerequisite for receiving a green card. A green card will then allow the alien to work in the U.S.
Q: Who can obtain a green card without an approved labor certification?
A: Family-based immigration cases don’t require labor certifications. Neither do certain employment-based petitions, including National Interest Waiver applications and EB-1, EB-4, or EB-5 petitions. Also, some pre-certified (Schedule A) occupations, such as registered nurses, do not require labor certifications.
Q: What type of job position requires a PERM labor certification application?
A: Any position may qualify for PERM, provided that the employer demonstrates that there is, in fact, a shortage of qualified and willing U.S. workers for the position in question.
Q: What are the employer requirements for a PERM labor certification application?
A: A petitioning employer must attest to the following:
Let’s illustrate these requirements by way of examples.
Ugroobetha decides to form her own company, an estheticians’ consultancy called Vainglory, in order to obtain a green card through an employer-sponsored immigration petition. Once established, Vainglory files a PERM labor certification application on Ugroobetha’s behalf.
How likely is it that Vainglory’s PERM application will be approved?
Not likely at all. DOL will probably deny this PERM application because it will not consider the position a bona fide job offer. After all, the sponsoring company was created solely to accommodate the alien employee’s immigration desires.
Dante’s current employer, Infernos ‘R Us, files a PERM labor certification application on Dante’s behalf. Dante’s present salary does not meet minimum prevailing wage requirements.
What effect does Dante’s current salary have on his employer’s PERM application?
It has no effect whatsoever. Dante’s current salary doesn’t have to meet the prevailing wage. A labor certification application is based on a future, not current, job. And so Infernos ‘R Us has to pay the prevailing wage only after Dante’s adjustment of status application (Form I-485) is approved. However, the company must show its ability to pay the proffered wage during the PERM application process.
Q: Do I have to work for my employer during the labor certification process?
A: No, you’re not required to work for the petitioning employer. That said, if you don’t work for the employer during the immigration process, you must work for the employer for a reasonable period of time after you receive permanent residency.
Alternatively, if you have been working for 180 days after filing your I-485 and after your I-140 is approved, you may change employers, and take a similar position without any effect to your I-485 process. Note, however, that whether the positions are “similar” enough is subject to a certain legal standard. This is another reason we recommend you consult with experienced attorneys prior to changing jobs in such circumstances.
Q: I currently have a part-time job, and my employer has recently agreed to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?
A: No. The job offer must be a permanent and full-time position. But you should remember that the requirements of the job being permanent and full-time apply only to the prospective job, when an alien receives permanent residency. You’re not required to work full-time for a petitioning employer at the time said employer submits a PERM application. In fact, you don’t have to work for the petitioning employer at all before receiving a green card.
Q: My employer is a start-up company currently operating without a profit. Is my employer eligible to file a labor certification application on my behalf?
A: It is possible. A sponsoring company is not required to be profitable in order to file a labor certification application. However, the company still has to show its ability to pay the proffered wage from the date it files a PERM application until the date the alien beneficiary receives a green card.
Q: The company that is considering hiring me has not made a profit for the past two years. Would this company still be able submit a PERM application on my behalf?
A: It depends. One way to prove ability to pay the prevailing wage is by demonstrating that the petitioner’s net current assets are equal to or greater than the offered salary for a period of time starting on the date the PERM labor certification application is submitted. If you, as the beneficiary, are currently being paid a salary equal to or greater than the prevailing wage for a period of time starting on the date the PERM application is submitted, USCIS will most likely find that the employer has demonstrated the requisite ability to pay.
Q: What is the prevailing wage in a PERM labor certification?
A: The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.
Q: Which government agency determines the “prevailing wage” for PERM labor certifications?
A: As of January 4, 2010, the National Prevailing Wage Center (NPWC) has been charged with determining the prevailing wage. SWAs are no longer involved in prevailing wage determinations.
Q: How do I obtain a prevailing wage?
A: A prevailing wage determination is obtained by submitting Form ETA-9141 to the National Prevailing Wage Center (NPWC) in Washington D.C., or, in a few circumstances, by accessing other alternative legitimate wage survey data. NPWC generally relies on the most common wage survey, which is accessible online from Occupational Employment Statistics (OES).
Prevailing wage requests submitted to NPWC should include the job title, job description, area of intended employment, and the requirements for the job; requirements include education level, years of experience, and any other particular qualification. NPWC responds with the wage for those similarly employed in the same geographic area, and points to the wage survey used to determine the wage. It also provides the wage level.
Q: How long is a prevailing wage determination valid?
A: A determination is valid for a period of time no fewer than 90 days and no greater than a year from the date issued. In PERM petitions, the employer must do one of two things: either file ETA Form 9089 with DOL while the determination is valid, or start recruitment at some point during the validity period.
Q: What happens if NPWC determines a prevailing wage higher than what the employer is willing to pay?
A: If NPWC issues a prevailing wage determination higher than what the employer is willing or able to pay, it is possible to look at alternative job classifications for which average wages are lower. DOL policy on combination of occupations cases is to assign the highest prevailing wage that applies.
Alternatively, the employer can file a report from another wage data source with a request that it be used instead of NPWC’s determination. DOL is not bound by either source. If DOL denies such a request, the employer has a right to appeal to the Board of Alien Labor Certification Appeals (BALCA). Requests for prevailing wage determination review by BALCA must be in writing and have to be submitted no more than 30 days after receiving NPWC’s determination.
The employer can otherwise choose to file a new prevailing wage determination request with NPWC and use the new determination instead.
Q: My employer, which sponsored my current H-1B visa, is a sole proprietor. Currently, he is paying me less than the prevailing wage set for the labor certification application, but my salary does meet the prevailing wage set for H-1B. Is my employer required to prove that he has the ability to pay the PERM prevailing wage, or will paying the H-1B prevailing wage suffice?
A: Your employer still must prove his ability to pay the PERM prevailing wage. Although an employer is not required to pay the proffered wage until the alien beneficiary receives a green card, the employer must still show that it can for a period of time beginning on the date the employer submits a PERM application. If an employer has not already paid the prevailing wage set for the labor certification, it must produce evidence from the time it filed a PERM application to demonstrate the ability to pay.
Q: When does the employer have to pay the offered salary to the alien employee?
A: Because a PERM application and subsequent visa petition are filed for a prospective job, the petitioning employer is required to pay the alien beneficiary the offered salary, which must be equal to or greater than the prevailing wage, starting at the time the alien receives a green card. However, the employer must demonstrate its ability to pay the offered salary throughout both petition processes, up through the date the alien beneficiary’s I-140 and I-485 are approved.
Q: How does the employer demonstrate its ability to pay the proffered salary?
A: A petitioning employer will be considered to have the requisite financial ability if it satisfies at least one of the following. (Note that every employment-based petition requiring proof of the employer’s ability to pay must include at least one of the below items.)
According to a USCIS memorandum commonly referred to as the Yates Memo, an adjudicating officer can make the discretionary determination that an employer has the ability to pay through any of the following:
-For example, say a beneficiary’s proffered wage is $70,000, and the employer’s net income is $50,000. Currently, however, the beneficiary is being paid $25,000. The employer in this situation can combine net income with the beneficiary’s current salary to satisfy the ability to pay $70,000.
Q: What if my sponsoring company fails to prove its ability to pay the prevailing wage?
A: Failure to produce evidence showing an ability to pay the prevailing wage starting on the date the PERM application is filed may result in a denial of the immigration petition to be filed later. Over the course of the labor certification process, DOL does not typically check a petitioning employer’s ability to pay. However, during I-140 processing, USCIS does confirm this, and looks into the issue carefully, backtracking to the date the labor certification application was filed. The burden of proof demonstrating an ability to pay rests solely with the petitioner, so the employer must be prepared to produce this evidence.
Q: What will happen if my employer does not promise to pay the prevailing wage?
A: Remind your employer that this promise is legally binding and must be honored when you obtain your green card.
Q: What is the minimum salary requirement for a labor certification application?
A: It depends. Each job position has a different prevailing wage rate depending on the location of the job position.
Q: How long should PERM recruitment take?
A: There is no mandatory length of time recruitment should last. The principal consideration is whether or not the petitioning employer’s recruitment activities meet substantive requirements. According to DOL regulations, recruitment activities must be concluded at least 30 days prior to filing, and must have begun no sooner than 180 days prior to filing. One of the three additional steps required for recruitment for professional occupations may take place within a period of 30 days before filing the application. None of the recruitment activities may take place more than 180 days prior to filing the application. Technically, an employer could complete all recruitment activities within 30 days since a job order has a mandatory 30-day posting period. All other recruitment activities may be conducted concurrently. If recruitment takes only 30 days, then the employer need only wait another 30 days to submit the application, for a total of 60 days from the start of recruitment to filing.
Q: Are there any timeframes that dictate recruitment activities?
A: Yes. All mandatory advertisements, job orders, internal postings, and additional recruitment activities must occur within 180 days of the filing date, but no sooner than 30 days prior to the date of the filing. A single exception is allowed: one of the three additional recruitment activities required for professional occupations may occur within 30 days before the date of filing.
Q: How important to the labor certification process are the job description and minimum job requirements?
A: They’re both central to the labor certification process. Clearly written job descriptions and job requirements determine the pool of potential job applicants responding to the advertisement. In addition, they determine whether the position will meet the technical requirements of a successful PERM application.
Note that any unreasonable minimum job requirements or requirements that are tailored to the specific alien beneficiary’s qualifications are not allowed, and will likely prompt an audit or review by a DOL Certifying Officer (CO).
Q: Can my employer restrict the job requirements to specifically fit my credentials and thereby make most potential applicants unqualified?
A: The job requirements cannot be unduly restrictive. In general, a job won’t be considered unduly restrictive if the job requirements are:
All three conditions must be satisfied. This is one of the critical issues in labor certification applications, and experienced attorneys can make the determination as to whether the conditions are satisfied.
Q: So foreign language skills can never be a job requirement?
A: It depends. As a general rule, requiring an applicant to have foreign language skills is considered unduly restrictive, and likely will trigger an audit. However, there is an important exception: business necessity. DOL won’t consider a language requirement unduly restrictive if the employer can demonstrate that the position demands such a skill. Consider a position as a Chinese-language teacher, for example. A Chinese-language teacher must speak Chinese in addition to English in order to perform the job, and so the employer can argue a business necessity exception.
Q: What exactly is meant by “business necessity?”
A: A business necessity refers to the idea that a job requirement is essential to fulfilling the reasonable job duties as described by the employer. DOL uses a Job Zone level to determine the basic requirements for a job. If the basic requirements for a job in a PERM application exceed those in the Job Zone level, DOL may conduct an audit of the application and require the employer to demonstrate the business necessity of any excessive job requirements.
Q: I work as a programmer at a small company, and all of my co-workers speak Mandarin at the office. Because of this, couldn’t my employer require Mandarin as a job requirement borne out of business necessity?
A: Probably not. The central question in arguing a business necessity is whether or not a requirement is reasonably necessary to perform the job. Although it may be convenient to communicate in Mandarin in a workplace where all of your co-workers speak Mandarin, proficiency in Mandarin is not reasonably necessary to perform the job. Arguing business necessity would be easier if your job entailed writing Chinese software programs.
Q: I run a travel agency, and more than half my clients exclusively speak Arabic. I need to recruit an agent for my workforce. Would I be allowed to require Arabic-language skills as a business necessity?
A: Maybe. Under this circumstance, you must provide evidence that the foreign language skill is necessary to communicate with clients, customers, or contractors. In practice, however, it is hard to challenge business necessity audits based on foreign language requirements.
Q: What are the mandatory advertisement requirements for PERM labor certification?
A: PERM regulations require employers to advertise job positions in newspapers; the ads must appear in at least two Sunday editions, and the newspaper must be in general circulation. Additionally, the employer has to submit one 30-day job order with the appropriate State Workforce Agency. Regulations allow employers offering a professional position (i.e. a job that requires an advanced degree) to advertise in one Sunday edition of a newspaper of general circulation and in one print professional journal relevant to the job being offered.
The newspaper has to plausibly attract job applicants. If a newspaper of general circulation in a rural area does not have a Sunday edition and the job is to be performed in that rural area, then the day of the week that has the largest circulation may be substituted. Let’s say we’re helping an employer recruit for a job that will be located in a rural area, and the local newspaper only publishes on Monday and Wednesday. We find out that more people buy the Monday edition of the two. Accordingly, the employer would advertise in two separate Monday editions of the newspaper.
For suburban areas that do not have a local paper with a Sunday edition, the paper serving the metropolitan area of which the suburb is a part must be used to meet the Sunday requirements. Regulations do not treat suburban areas like rural areas they do. Note that professional positions require three additional recruitment activities.
Q: What information should a job advertisement include?
A: Newspaper ads for both professional and nonprofessional occupations must include the exact job description and minimum job requirements as they will appear in ETA Form 9089. The ads must also include: the name of the employer; how, where, and to whom applicants should submit resumes to the employer; a general description of the job; and a brief description of the geographic area where the job is to be performed. Ads cannot reference any job requirements other than those listed on ETA Form 9089, and are prohibited from including wages or terms that are less favorable than those offered to the alien beneficiary.
Q: Do I need to include the wage rate in the advertisement?
A: No, the wage that will be paid to the employee does not need to be included in advertisements. If it is included, if cannot be lower than the prevailing wage.
Q: Who drafts advertisements used for recruitment?
A: If you hire our firm to handle your labor certification application, one of our highly experienced PERM attorneys will prepare your job advertisement to ensure it meets all requirements.
Q: What happens once the advertisements start running?
A: After the employer publishes ads and subsequently receives resumes, the employer is obligated to contact each applicant who appears minimally qualified for the position. The employer can disqualify applicants for lawful reasons only. Such reasons include, for example, an applicant’s not having the required educational background or years of experience.
Q: How much does it cost to place job advertisements in newspapers?
A: The costs vary from a few hundred dollars to well more than $1,500. Costs depend on the rate the newspaper charges, which itself is a function of the area the newspaper serves and how large its circulation is. A job posting in a newspaper serving a large metropolitan area will generally cost more than one in a small rural newspaper.
Q: How do I select a newspaper in which to advertise my job posting?
A: Job postings have to be in a newspaper serving the area where the job will be located. The newspaper must have a general circulation (i.e. not specific to one community or audience) with a substantial subscribership. Your attorney will facilitate publishing your advertisement in appropriate, DOL-accepted media. If you hire us, our firm will arrange newspaper and external postings. We further expedite this process by working with a national media company with expertise in selecting DOL-accepted newspapers. And we save you money by getting a discounted rate!
Q: Does your firm handle all aspects of publishing job advertisements?
A: Yes, our firm makes arrangements to have advertisements handled through an advertising agent. Generally, an advertising agent can obtain a better price than the rate quoted by newspapers to the general public.
Q: Do I really have to advertise in a Sunday edition?
A: Yes, employers offering jobs in both urban and suburban areas must publish job ads in the Sunday edition of an acceptable local newspaper. If an employer’s job is offered in a location that does not have a Sunday newspaper, then said employer is allowed to use the newspaper edition with the widest circulation.
Q: Say the position is for a worker with an advanced degree. Do I still have to advertise in the Sunday edition of a newspaper?
A: Yes. If the position is for a job requiring an advanced degree and experience, and is one that would normally be filled by a professional, you must still place an advertisement in at least one Sunday edition of a newspaper of general circulation. You can choose to publish the second ad in a professional journal.
Q: What is a professional position?
A: In general, a position that requires a minimum of a bachelor’s degree or higher is considered a professional position. For example, a software engineer position requiring a minimum of a four-year degree would be considered a professional position. Accordingly, both the basic recruitment activities as well as additional activities are required. However, a position such as a Mexican cook generally requires only two years of experience but no degree, and is thus considered nonprofessional. Accordingly, no additional recruitment activities other than the minimum are required. For more information on this distinction, click here.
Q: Are additional recruitment activities required for professional positions?
A: Yes. For professional positions, regulations require the employer to conduct other recruitment activities on top of the basic ones. For professional positions, the employer must advertise or recruit at or by way of any three of the following:
Q: Would placing three advertisements on different websites or three ads on TV satisfy the additional recruitment steps?
A: No. Ads have to appear in three different outlets as specified in the list above. They cannot all run in the same media. If an employer places three postings on three job search websites, DOL will still consider it only one type of posting activity.
Q: What is a job order?
A: A job order is an ad for an open position advertised with a State Workforce Agency (SWA). For purposes of PERM, the job order must run for a minimum of 30 days; this 30-day timeframe must conclude at least 30 days prior to filing a PERM petition. However, the employer is not limited to a 30-day period of advertising, and may choose to post the job order for longer.
Q: What is a notice of filing?
A: A notice of filing, which is also known as an internal job posting, is a job advertisement posted internally and conspicuously at the employer’s premises for at least 10 business days during recruitment activities. A notice of filing serves to inform the employer’s workforce of the current opening, as well as the fact that the employer may file a foreign labor certification application. It also includes information for reporting violations to DOL. In sum, internal job postings have to adhere to granular specifications, including particular wording, as required by law. Our experienced PERM attorneys can seamlessly draft an internal job posting for you meeting these specifications.
Q: What must be included in the notice of filing?
A: The notice of filing must comply with DOL requirements, which include: containing the wage offered (except for Special Handling cases), job description, working hours, contact person’s name and address, and additional mandatory elements, such as where to report violations of the labor certification process. DOL has very strict requirements for the notice of filing, and any mistake or error in this posting could ultimately result in your case’s denial.
Q: Does the employer need to provide a notice of the filing to a bargaining representative?
A: Yes. If the offered position is a union position, the bargaining representatives of the employees in the same occupational classification for which the application is being filed must be given notice. If there are no bargaining representatives, then a basic notice of filing as described above will suffice.
Q: Has PERM expanded the notice of filing requirement?
A: Yes. The employer must now publish the notice of filing in any and all in-house media, whether electronic or print, that are typically used by the employer for posting such notices of recruitment for similar positions.
Q: How long does a notice of filing have to be posted?
A: The notice of filing can be posted indefinitely. It must be posted for at least 10 consecutive business days, and those 10 days must fall in the 30- to 180-day window before filing a PERM application.
Q: What is the employer required to do during the recruitment process?
A: Generally, employers should maintain a record of all resumes received, both qualified and unqualified, for the recruitment report. They should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep a record of interviews in order to explain why any applicants were deemed unqualified. Our firm can ably help review resumes and provide guidance on how to deal with thorny situations.
Q: What is the recruitment report?
A: PERM regulations impose several specific requirements on the recruitment report, but on a general note, this report is a statement detailing all recruitment activities the employer conducted. The information contained therein will include a record of applications, interviews, and employer decisions on applicants. Although employers aren’t required to submit the report with their initial PERM application, PERM regulations do require the employer to sign the report prior to filing. Further, employers should submit the report to DOL no later than 30 days after receiving DOL’s request in the event the case is selected for auditing.
Q: How soon after the start date of recruitment can an employer submit a PERM application?
A: Technically, the employer can submit a PERM application 60 days after the start date of recruitment. As explained above, the employer may complete all required recruitment activities in 30 days. There is a 30-day waiting period between completing the mandatory job posting and two of the three optional postings, if applicable, and submitting a PERM application. This timeframe allows employers to screen and interview potential candidates.
Q: What will happen if another company merges with the company I work for after my PERM labor certification is approved?
A: If the new company accepts all assets and liabilities of the employer-company as a successor in interests, then the new company can continue facilitating your green card process.
Q: What will happen if I change jobs while my PERM labor certification application is pending, or do so after it has been approved while my I-140 immigrant visa petition is pending?
A: Changing jobs will not affect your labor certification application if your sponsoring employer agrees to continue its PERM and immigrant visa petitions on your behalf, and assuming you will return to the sponsoring employer after obtaining your green card or immigrant visa. But honestly, in the real world, most employers will just withdraw or discontinue their sponsored immigration processes if you up and leave them.
Let’s consider a hypothetical example.
Burkaset works for Faux Fashions, Ltd., a wallet manufacturing company. Faux Fashions, Ltd. files a PERM labor certification application for Burkaset. Shortly thereafter, Burkaset discovers an enticing job opportunity with Buffy’s Apparel, which would allow Burkaset to relocate to a city much closer to her family. Burkaset decides to take the job. She subsequently negotiates with Faux Fashions, Ltd., finalizing an agreement that Faux Fashions, Ltd. will proceed with her PERM and immigration visa applications while she is employed at Buffy’s Apparel, and that she will return to work for Faux Fashions, Ltd. after her green card is approved. Buffy’s Apparel accepts these terms.
In such a situation, which is a best-case scenario, Burkaset is able to proceed with her pending petitions, and the temporary change of employer will not affect the green card process.
Q: Can two or more companies file PERM labor certification applications for the same alien worker at the same time?
A: Yes. A labor certification application concerns an employer’s job position that cannot be filled by U.S. workers, and so the focus of the process is said employer and job position, not the individual alien worker who would be the application’s beneficiary.
Q: Can one company file two PERM labor certification applications for the same employee for two different positions?
A: No. Current practice dictates that a single employer is prohibited from filing two PERM applications for the same alien. Even though it is within the realm of legal possibility to have an employer file two labor certification applications for two different positions for the same foreign worker, the PERM filing system itself won’t allow such filings.
Q: Can I file a PERM labor certification while I have a labor certification pending at the Backlog Elimination Center?
A: Yes. An employer with a pending PERM application at the Backlog Elimination Center can file a new application. In fact, the new PERM filing can be for the same position as in the pending application, or it can be for a new job vacancy altogether. Filing either won’t impact the pending case.
Q: I have already filed an immigration petition under NIW, EB-1A, and/or EB-1B. Can my employer still file a PERM labor certification application on my behalf?
A: Yes. If you’re a potential, or even actual, beneficiary of another immigrant petition, your employer is still permitted to file a PERM labor certification application on your behalf. It would simply be an extra benefit to you.
Let’s consider this question in the context of hypothetical situations involving various immigrant visa categories.
Hubbard currently has a family-based immigration petition pending. His employer, RiRi’s Emporium, would like to file a labor certification application on his behalf.
Is RiRi’s Emporium allowed to do so?
Yes, and the PERM application may very well increase Hubbard’s chances at obtaining an approved petition, which he can later use to file for a green card.
Gloria is an accomplished nuclear scientist currently working for Domel Laboratories. She has just filed an employment-based self-petition in the National Interest Waiver category.
Can Domel Laboratories file a PERM labor certification application on behalf of Gloria?
Yes, and doing so may increase the odds that Gloria successfully obtains a green card.
Tuan is an F-1 student. Tuan’s prospective employer, Buc L-Automotive, intends to file a PERM labor certification application on his behalf.
Is Buc L-Automotive permitted to file an application for labor certification?
Yes; as a general rule, a labor certification filing isn’t considered an expression of intent to immigrate, and therefore wouldn’t affect Tuan’s F-1 visa status and renewal. However, after an I-140 petition is filed for him, his F visa status and renewal may be affected, and even ultimately denied.
Nagi’s NIW petition has already been approved, but his adjustment of status application, based on his I-140 petition, is still pending. Nagi recently decided to make a career change, hoping to move from an assistant professorship at an internationally renowned university to a position as a high-level engineer at a petrochemical corporation. Given his new line of work, Nagi is now worried that his I-485 application may be denied.
Can Nagi have his prospective employer, the petrochemical corporation, file a PERM application on his behalf?
Yes, and Nagi can thereafter apply for a green card through the labor certification process. He then won’t have to worry about a potential denial of his currently pending I-485 application.
Q: What will happen to my PERM labor certification case if my employer goes out of business?
A: Unfortunately, your PERM application will be denied. Even if DOL approves it without notice of the shuttered, or soon-to-be-shuttered, business, you won’t be able to proceed with an I-140 petition without sponsorship from the petitioning company.
Q: Am I allowed to leave the U.S. while my PERM labor certification application is pending?
A: Yes, you can. However, note that just because your PERM labor certification application is filed and pending will not aid your re-entry into the U.S. You still will have to secure a visa for re-entry and resolve all related issues. To this end, prior to your departure, consult a seasoned immigration attorney who’s able to resolve all issues that could impact your re-entry.
Q: Will a PERM labor certification application affect my nonimmigrant visa application?
A: A submitted or approved labor certification application will most likely not impact your nonimmigrant visa application. The current nonimmigrant visa application form does not require disclosure of a labor certification application. However, if you are the beneficiary of a pending or approved I-140 immigrant petition, which is usually filed after receiving PERM approval, your I-140 will impact your eligibility to secure a nonimmigrant visa (except for those applying in L or H nonimmigrant visa categories).
Q: My spouse’s employer recently filed a PERM labor certification application on his behalf. Should I still ask my own employer to file a PERM labor certification application on my behalf, too?
A: Yes. Filing two labor certification applications may increase your approval chances, and also potentially the speed with which you’re able to obtain a green card.
Q: Can I withdraw a PERM application that DOL wants to audit?
A: No. If an application is selected for an audit or review, the petitioning employer cannot withdraw the application, and must ultimately face any consequences of the audit.
Q: My labor certification has been approved! I’m excited, but now I’m worried that there’s some factor that may prevent me from obtaining a green card. Am I being paranoid?
A: You’re just being prepared, not paranoid. If your labor certification has been approved, you are well on your way to obtaining a green card. Potential risk factors, if any, may include your company’s ability to pay or a criminal record, for example. If any such factors apply to your situation, speak with an experienced immigration attorney.
Q: What’s the difference between EB-2 and EB-3?
A: EB-2 refers to employment-based, second-preference immigration petitions. A position that requires a minimum of a master’s degree or a bachelor’s degree plus five years of experience may qualify in the EB-2 category. A position that requires, at a minimum, a bachelor’s degree or two years of experience generally falls in the EB-3 category, which refers to employment-based, third-preference immigration petitions. In adjustment of status or consular processing, EB-2 and EB-3 visa availability may differ. You can check on visa availability here or here.
Q: What do you mean by “visa availability?”
A: For employment-based immigration petitions, each category has a certain quota of visas, some designated for individual countries, on an annual basis. If a visa number in one category for a certain country has been used up, aliens born in that country may have to wait for visa numbers to become available. You can check on visa availability here or here.
Q: How can I estimate the waiting period for a visa?
A: The time between your priority date and cut-off date issued by the State Department is generally the period of time that you have to wait before you are eligible to file for adjustment of status or complete consular processing.
Q: What is my priority date for a PERM petition?
A: For purposes of a labor certification application, your priority date is the date when DOL receives the PERM application.
Q: What is a cut-off date?
A: The cut-off date refers to the date posted by the State Department each month with respect to visa availability. Applications with priority dates that fall before the cut-off date should have immigrant visas available to them for which they can apply.
Priority and cut-off dates may seem obscure, so consider the following scenario:
Sheila Wang, a Chinese national, is the beneficiary of a PERM labor certification application that was filed on May 14, 2014. The position requires a bachelor’s degree, and so her visa category is EB-3. Ms. Wang’s priority date is May 14, 2014, the date the PERM application was filed online and received by DOL.
Let’s assume the PERM application was approved on July 28, 2014. As of March 2017, the published cut-off date in the EB-3 category for a Chinese-born alien was August 15, 2014. Therefore, Ms. Wang will be eligible to file an I-485 application because her priority date falls before the cut-off date. Of course, she had to wait three years!
Q: If I retain your firm for my PERM application, what will my attorney do?
A: Our attorneys will handle most of the work for you, which includes the following:
Q: Who will handle my case if I retain your firm for a PERM labor certification application?
A: Our experienced attorneys will directly handle your case, from start to finish, by analyzing job openings and the potential alien beneficiary’s qualifications; drafting job descriptions after communicating with both the petitioning employer and alien employee; obtaining a prevailing wage determination; designing advertisements and the strategies underlying where to place job ads; arranging advertisements and internal job postings for publishing; guiding the petitioning employer throughout the recruitment process, which includes collecting and maintaining all documentation needed; preparing recruitment reports and documentation for a potential audit; and filing and following up with DOL on the pending application. In the event of a DOL audit, our attorneys will carefully prepare responses and submit them promptly. At our firm, you will have peace of mind knowing that only experienced attorneys, and not clerks or paralegals, are handling your case. Our law clerks’ main objective is to assist our attorneys administratively. On top of that, not only will your PERM application be prepared by an individual attorney, but one of our most experienced partners will review the application prior to submission.
Q: I live in California, but your office is headquartered in Houston. Would you still be able to handle my labor certification case?
A: Yes. Since immigration is a matter of federal law, we can represent clients located throughout, and even outside, the U.S. And while our firm is headquartered in Houston, we also have offices in New York City, Los Angeles, Silicon Valley, Chicago, Seattle, and Austin, TX. We can handle PERM labor certification cases for clients, irrespective of where they reside, by employing the latest technology designed to facilitate superior professional services. If you’re interested into how far and wide our clients come to us from, check out this map.
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: