IMMIGRATION: Labor Certification

PERMANENT RESIDENCE THROUGH THE
PERM LABOR CERTIFICATION PROCESS

Through a process called "Labor Certification, if a determination is made by the U.S. Department of Labor that there are no qualified U.S citizen or permanent resident applicants, they will certify the job position for alien availability, and so long as other qualifying factors are satisifed, a foreign national may apply for U.S. permanent residence and get a "Green Card".

While this may seem to be a difficult, if not impossible, burden, the current shortage of skilled workers in the United States assures approval in many areas of employment, and the Labor Certification approval rate is actually quite high if the application is properly prepared by a qualified professional with experience in handling labor certification matters.

Except for certain categories which are exempt from Labor Certification, which includes Family Related Petitions and certain labor certification exempt Multinational Managers or Executives or Employment Based category one (EB-1) persons with "exceptional abilities", and Investors who have made the required capital investment in new business, most prospective immigrants must find an employer who will sponsor them in a "Labor Certification" to determine that there are no U.S. workers ready, willing, and able to accept the employment offer on the terms, and at the wage offered in the Application for Labor Certification.

As strange as it may seem, there is no permanent residence qualification for retirees, no matter how much money they have, unless they invest in the Investor Visa Program, or possibly buy and manage a business that qualifies them for an "E-1" or "E-2" nonimmigrant visa.

A Labor Certification is based upon an offer of permanent employment, and not on the employment itself. Therefore it does not matter where in the world the alien is, or what he is doing, while the Labor Certification application is processing, so long as he or she is not living or working in the United States in violation of immigration status.

A foreign national obtains absolutely no immigration status through the mere filing, or even the approval, of a Labor Certification. Permanent resident status is only achieved by application and approval, after the Labor Certification and the I-140 are both approved and the permanent residence visa is issued and adjustment of status is completed.

Labor Certifications under the
PERM Labor Certification Program

Labor Certifications under the PERM Labor Certification Program are being appoved very quickly. Unfortunately, the masses of PERM approvals have caused a severe backlog in the Visa Quota System, and therefore, as a practical matter, obtaining Permanent Residence through a Labor Certification can take several years. For U.S. Department of State Visa Quota System statistics, click here: Visa Bulletin

STEPS TO PERMANENT RESIDENCE (GREEN CARD)
THROUGH LABOR CERTIFICATION

Step 1 - Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual.

Step 2 - Immigrant Petition (I-140): After the labor certification application is approved, the company files an immigrant petition with the U.S. Immigration and Naturalization Service (INS).

Step 3 - Adjustment of Status to Permanent Residence (I-485): After the immigrant petition (I-140) is approved, the employee can apply for adjustment of status to U.S. permanent resident for himself and his spouse and children. Step 2 & 3 applications can be filed concurrently.

LABOR CERTIFICATION QUALIFYING CRITERIA

• There must be a bona fide job opening;
  
  
• The employer must hire the foreign worker as a full-time employee;
  
  
• The employer must hire the foreign worker as a full-time employee;
  
  
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications;
  
  
• The employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity;
  
  
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment, any must prove financial ability to do so;
  
  
• The employer must conduct a pattern of recruitment of U.S. workers that satisfies the regulations promulgated by the U.S. Department of Labor, relative to PERM labor certifications to prove no U.S. workers are available;
  
  
• The employer must fully document all recruitment efforts and results.

THE "PERM" LABOR CERTIFICATION PROCESS

The final PERM (Program Electronic Review Management) regulation was published in the Federal Register on Monday, December 27, 2004 and became effective on March 28, 2005.

PERM requires the employer to develop an education and/or experience set of requirements for the position sought for labor certification. In determining the actual minimum requirements for the position based on education and/or experience, the employer is required to adhere to certain rules and regulations:

PERM will still utilize the concept of business necessity and the general prohibition against any combination of duties. however, PERM has adopted a modified rule regarding the use of experience gained with the same employer which is much more restrictive than under the old system. These issues are important because if there is even one qualified U.S. worker for the job during the recruiting process, the process must stop.

PERM makes it even more important that we carefully analyze the actual minimum requirements before the case is started. The reason for this is that the new process allows the employer to file the labor certification application without any supporting documentation. In other words, the Department of Labor will review the case based upon the filing of one form. As is discussed below, although this sounds like a much simpler process than in the past, it is actually much more dangerous and could very possible lead to disastrous results. Once the actual minimum requirements for the position have been determined, the employer is required to recruit pursuant to a complicated set of options. To determine which set of options apply to a particular case, the first question is whether or not the position is "professional".

Generally, any position which requires at least a bachelor's degree will be considered "professional". Those positions which generally do not require a bachelor's degree will not be considered professional and therefore have a different set of recruiting requirements.

Both professional and nonprofessional positions must recruit by placing an advertisement in a newspaper of general circulation in the area of intended employment on two separate Sunday editions. The employer must also open a job order with the State Employment Commission which must remain open for at least thirty days. Finally, for all labor certification cases, the employer must post an internal notice for at least ten days.

The "professional" positions, which will constitute the majority of labor certification applications, will be required to complete three additional recruiting attempts in addition to the ones listed above. These three additional recruitment steps must come from the following list:

1. Job Fairs;

2. Posting on the Employer's website;

3. A job search website other than the employer's;

4. On campus recruiting;

5. Trade or professional organizations;

6. Private employment firm;

7. An employee referral program if it includes incentives;

8. A notice of the job opening at a campus placement office
if the job requires a degree but no experience;

9. Local or ethnic newspapers to the extent they are appropriate
or the job opportunity;

10. Radio and television advertisements All of the recruiting steps must be completed within 180 days of filing the application. In other words, recruiting efforts that are conducted more than 180 days prior to filing the application will not be considered.

In addition, at least two of the additional recruitment steps for professional positions must take place more than 30 days prior to filing the application. The Department of Labor has indicated in its comments to the new regulations that it anticipates issuing labor certification decisions within 60 days of filing the application. That would appear to be a welcome change to the current system which currently takes years to receive a decision but in reality it is only the first possible step in what could turn out to be a nightmare for the employer and the employee.

What Happens After the Department of Labor
Makes a Decision on the Application?

Once the Department of Labor receives the application under the PERM program, it has three options. First, it can simply approve the labor certification application and issue the certification.

Second, the DOL may issue an "audit letter" which requires the employer to prove each and every element of the case including all of the recruiting sources, a review of all of the applicants and the specific reasons for disqualification and any other issue, which the Department of Labor wishes to review.

The third option is for the Department of Labor to require "supervised recruitment" which means that the entire recruiting process would have to be conducted again under the supervision of the government and pursuant to whatever sources of recruitment are ordered.

The best outcome of the three is the issuance of the labor certification and the approval of the case. However, the Department of Labor has retained the authority to invoke revocation proceedings against any employer who has an approved labor certification.

The new regulations also allow the Department of Labor to initiate this revocation at any time in the future. It is unclear whether or not this can be initiated after permanent residence is granted but it certainly can be initiated prior to that time. Therefore, even the grant of the labor certification does not mean that the case is over. In contrast, under the current system, the only way the Department of Labor can reopen a labor certification that has already been approved is if there has been fraud or misrepresentation in the processing of the case.

Under the PERM program, the basis for the reopening of the case can simply be an investigation of the employer's recruiting efforts. And remember, if there was only one qualified worker who applied during the recruiting process, the case should never have been filed. In addition to the issues concerning the "audit letters," the "supervised recruitment," and the possibility of reopening the proceedings and revoking the labor certification, there are also serious questions regarding the prevailing wage determination which has been changed substantially under PERM as well as other issues.

Labor certifications, especially under PERM, are complex and detail oriented. There are many pitfalls, and the regulations must be followed exactly. The assistance of an experienced immigration lawyer is essential.

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