18
Mar, 2014

In March 2005, the Department of Labor introduced a new way to process Labor Certifications called PERM.

The PERM program still maintains the underlying policy for Labor Certifications:

  1. The employer must prove that the position cannot be filled by a US citizen or permanent resident, AND
  2. The employer must show that employing the alien will not adversely affect wages and working conditions of other employees.

    Both the position and the alien must meet certain criteria to get a Labor Certification approved:

    • The position offered must be full-time and permanent. The employer must define minimum levels of work experience or educational requirements, in line with the industry standard.
    • The alien must possess the required education and/or work experience for the position.
    • The employer must demonstrate that they have conducted recruitment efforts according to PERM regulations, and that they have not been able to locate a qualified U.S. worker for the position. Typical recruitment consists of advertising the position with the state workforce agency in the area of intended employment and two newspaper advertisements. For professional positions, a further three forms of recruitment, such as placing an advertisement on a job search website, in a local or ethnic paper or on the employer website, is required. All recruitment must take place within 180 days before the labor certification is filed.
    • The employer must also document their financial ability to pay the salary offered, which must equal at least the prevailing wage for the position, as determined by the Department of Labor.

The PERM application is an online submission and the employer is not required to submit the supporting documentation at the time of filing a PERM application. However, the employer may be required to submit some or all of the recruitment documentation in the event of an audit, and many cases are audited.

Once an approved Labor Certification is obtained, the alien can either submit an immigrant visa petition simultaneously with an application for adjustment of status or file an immigrant visa petition alone and, upon approval of the petition, file the adjustment of status application. Those with U.S. master’s degrees or a foreign equivalent, or for those with bachelor’s degrees and 5 years’ of experience, will usually be able to file for the immigrant visa petition and adjustment of status simultaneously as an immigrant visa is usually available in the Second Preference (EB-2) category. However, nationals of China, India and the Philippines, may not have an immigrant visa immediately available and will be forced to file for the Immigrant Visa petition alone. Similarly, Skilled Workers and Professionals with bachelor’s degrees who fall into the Third Preference Category (EB-3) can often only file an immigrant visa petition and must then wait for their Priority Date (the date on which the labor certification was filed) to become current before applying for adjustment of status to Permanent Residence. Exact dates can be obtained by going to the Department of State’s Visa Bulletin.

Special Recruitment for College, University and Medical School Teachers

College, university and medical school teachers may take advantage of the “special recruitment” procedure using a competitive recruitment and selection process whereby the employer need only show that the applicant was more qualified than other applicants. The application process is faster and more streamlined than the standard PERM application. The employer may rely upon recruitment done during the 18 months prior to the alien’s appointment to the position in question. Only one print advertisement in a national journal, and some additional in-house or online recruitment, is required.

Labor Certification and H-1B Extensions Beyond Six Years

Many aliens are already working in the United States in H-1B status. While the maximum time allowed in H-1B status is 6 years, they are either reaching their 6th year still waiting for the result of their pending labor certification applications or they have immigrant visa petitions in a preference category e.g. Skilled Worker for which no Green Cards are available. Now the law allows that an alien who has had a labor certification application pending for more than 365 days, or who has an approved immigrant visa petition but cannot adjust due to visa retrogression, may extend his H-1B status in one- year increments until the labor certification is approved, or for a three-year period until the priority date is current and he can apply for a Green Card.