ANDREW DUTTON, ESQ., P.C.
PERM BASED EMPLOYMENT IMMIGRATION
 
Introduction
 
One of the most popular ways to immigrate is through the sponsorship of a U.S. employer.  Unlike with a temporary work visa, your employment authorization will not be limited to your new sponsoring employer upon your admission to lawful permanent residence. This is because lawful permanent residents can work for any lawful employer in the United States. However, throughout the application process, you must be able and willing to state that you will work for the sponsoring employer under the terms and conditions that are stated within your application.
 
Usually there are three phases to the Green Card application procedure: the Labor Certification Application (“Labor Certification”), the filing of a form I-140 Petition for Alien Worker (“Petition”), and the Adjustment of Status application or Immigrant Visa application.  This page deals with Labor Certification and the Petition; Adjustment of Status and Immigrant Visas are discussed separately. 
 
Labor Certification
 
Labor Certification is the procedure by which your employer must be able to demonstrate to the U.S. Department of Labor that there are insufficient able, willing, qualified and available U.S. workers to fill your position. “U.S. workers” include U.S. citizens, lawful permanent residents, and those who have been admitted in refugee status or granted asylum.  This shortage is demonstrated by advertising your position via the state job bank, Sunday newspapers and other prescribed steps within a particular timeframe. 
 
Effective July 16, 2007, the employer became responsible for the cost of all recruitment costs and attorney’s fees in relation to the preparation, drafting and filing of the PERM Labor Certification. These costs cannot be reimbursed from the employee; if such reimbursement takes place and that is discovered by the U.S. Department of Labor, the employer could face sanctions which include the denial of the application and prohibition from filing future applications. 
 
Prevailing Wage Determination
 
The employer should obtain a Prevailing Wage Determination from the U.S. Department of Labor.  Usually these are issued within two to three months.
 
Once the employer has the Prevailing Wage Determination, it must offer at least that wage to prospective U.S. workers and to the foreign national employee, who is the subject of the Green Card Application.
 
Internal Notice
 
The employer must provide notice of the position that is the subject of the Green Card Application. Typically, this is done via the posting of a notice that states the job title and describes the duties, minimum entry qualifications, and the wage offered. The notice also must provide the address of the Department of Labor Certifying Officer, should anyone wish to provide comments on the notice or the job opportunity.
 
This notice must be displayed in conspicuous places for a period of 10 consecutive business days. Multiple notices can be used, if so desired. A notice must be displayed via electronic media (such as via an employer’s Intranet), if that method typically is used for recruitment. The internal notice must be displayed no later than 30 days, but not earlier than 180 days, of the filing of the PERM Labor Certification.
 
Where there is a bargaining representative, notice need only be provided to that bargaining representative.
 
Job Order
 
The employer must post a job order with the SWA for a period of 30 days, which advertises the position offered on the state job bank. This costs nothing. The job order must be posted no later than 30 days, but not earlier than 180 days, of the filing of the PERM Labor Certification.
 
Print Advertisements
 
There must be two separate advertisements published in the separate Sunday editions of a newspaper of general circulation in the area of employment. There is no master list of appropriate newspapers, in which positions should be advertised; rather, it is up to employers to choose to advertise in a newspaper that typically is used for recruitment for that type of position.
 
The advertisements can be published on consecutive (or non-consecutive) Sundays. One of the two Sunday advertisements can be replaced by a print advertisement in an appropriate journal, if the position is one that is professional in nature. The print advertisements must be published no later than 30 days, but not earlier than 180 days, of the filing of the PERM Labor Certification.
 
The print advertisements need not state the salary, or detail the minimum entry qualifications and job duties for the position. However, the advertisements must provide enough information to apprise potential job applicants of the job opportunity, state the name of the employer, state the location of employment, and state the place to which applications should be sent.
  
Additional Recruitment Steps
 
In addition to the print advertisements, the employer must select, and utilize, any three additional recruitment steps. These additional recruitment steps are necessary if the proffered position is a “professional” position – i.e., because it requires at least a bachelor’s degree as a minimum entry qualification.
 
All but one of the three additional recruitment steps must take place no later than 30 days, but not earlier than 180 days, of the filing of the PERM Labor Certification. One of them is permitted to take place within 30 days of the filing of the PERM Labor Certification.
 
The employer is free to choose three appropriate additional recruitment steps from the following list of 10 possible additional recruitment steps:
 
1. Internet Advertising on a Third Party’s Website
 
This additional recruitment step can be satisfied by the period of Internet advertising that usually comes with a newspaper print advertisement.
 
2. Internet Advertising on Employer’s Website
 
This additional recruitment step can be satisfied by the placement of a job advertisement on the employer’s website. This step should cost nothing to perform.
 
3. Employee Referral Program
 
This additional recruitment step can be satisfied, and evidenced, by an internal office memorandum that offers a financial reward to the employer’s staff members for anyone who can refer a job applicant who is hired for the position offered. This step should cost nothing to perform.
 
4. Trade or Professional Organizations
 
This additional recruitment step can be satisfied by providing copies of advertisements placed in the organization’s newsletters or trade journals. This step could cost up to $200 to perform, depending on the journal
 
5. Private Employment Firms/Placement Agencies
 
This additional recruitment step can be satisfied by the employer’s use of one or more employment agencies, in an attempt to locate U.S. workers for the position. Copies of contracts between the employer and the placement agency, along with copies of any advertisements for the position that were generated as a result, can be used to demonstrate the satisfaction of that step.
 
6. On-Campus Recruitment
 
Usually, this additional recruitment step is appropriate for entry level positions, which require no work experience beyond a particular degree. It can be evidenced by copies of notifications that were issued by the college which advertised the on-campus recruitment and the employer’s participation.
 
7. Campus Placement Offices
 
This additional recruitment step usually is most appropriate for entry level positions, which require no work experience beyond a particular degree. It can be evidenced by providing a copy of the advertisement for the job opportunity that the employer provided to the college.
 
8. Job Fairs
 
This additional recruitment step can be documented by brochures advertising the fair, and newspaper advertisements, in which the employer is named as a participant in the fair.
  
9. Local and Ethnic Newspapers
 
This additional recruitment step can be documented by providing a copy of the newspaper page in which the advertisement was placed. 
 
10. Radio and Television Advertisements
 
This additional recruitment step can be documented by providing a copy of the text of the advertisement that was broadcast, and a letter from the radio or television organization that confirms the broadcasting of the advertisement.
 
Responses to the Recruitment Steps
 
All responses from prospective job applicants must be considered. Any applicants who meet the minimum entry requirements must be contacted as soon as possible. Copies of the job applications and the employer’s treatment of each application must be kept on file.
 
In general, it is lawful for the employer to reject a U.S. worker for the position if the prospective job applicant does not meet the stated minimum entry requirements. However, it is not lawful to reject a U.S. worker’s application for illegal reasons (e.g., due to age, race or sex), or where that U.S. worker can obtain the required skills after a reasonable period of on-the-job training.
 
Recruitment Report
 
After the recruitment process, and prior to filing, the employer must prepare a Recruitment Report for its internal files that sets forth and documents all of the recruitment steps and any applications that were received. The employer is not required to reference individual job applicants in the report. 
 
PERM Filing
 
Through PERM, the Labor Certification can be filed electronically on form ETA-9089 through the U.S. Department of Labor website. Alternatively, it can be filed via mail to a designated location.
 
There is no filing fee and there is no need for the employer to submit supporting documentation (such as copies of advertisements, copies of the responses and a copy of the Recruitment Report), unless this is requested by the U.S. Department of Labor in an audit.
 
An audit typically may be requested if the Department of Labor believes the stated minimum entry qualifications for your position exceeds what is normal throughout that industry, making them appear to be unfairly restrictive. In that situation, the employer would need to respond to the audit request by showing a “business necessity” for those higher qualifications. Audits typically can add three to six months to PERM processing times and possibly longer.
 
After the Labor Certification has been certified by the U.S. Department of Labor and returned to the employer, the employer then will be able to file the Petition with the U.S.C.I.S. 
 

 

Exceptional Cases When Labor Certification is Not Used
 
Unless you fall into the very few individuals in your profession, who have risen to the top of their field or who are eligible to obtain a National Interest Waiver, you will need to undergo Labor Certification as a part of your application process.  There also is an amended form of Labor Certification (known as "Special Recruitment") for classroom teaching college educators.  Please contact me directly to discuss your eligibility for Special Recruitment or a waiver of Labor Certification based on your extraordinary ability, a National Interest Waiver or because you are an outstanding researcher or professor.
 
The Petition
 
Through the Petition, an employer will request that you should be given permission to work in the United States. If you needed to apply for Labor Certification, your original Labor Certification will be submitted with the Petition.  Evidence that your employer is able to pay your salary (such as a copy of your employer’s most recently filed federal corporate tax return), evidence concerning the position that has been offered to you, and evidence of your qualifications also must be submitted. 
 
  
Disclaimer:  The information provided by this website is general in nature.  Viewing this website and acting upon its content does not lead to the creation of an attorney-client relationship absent a signed retainer agreement with an attorney to that effect, nor does it imply that Mr. Dutton has engaged in the unauthorized practice of law in any jurisdiction.