Ryvin Wallace Group was recently pleased to learn that a labor certification (PERM) application filed for one of our clients was approved by the Department of Labor in less than 30 days!
The application was filed electronically on 8/9 and approved on 8/31. We have not seen such a quick turnaround since before the AOS "blizzard" during the Summer of 2007, when PERMs would routinely be approved in a matter of days. More recently, we have seen approximately four months for PERM approval (without audit), but we hope this recent decision is a sign of quicker processing.
To be clear, labor certification applications are filed with the US Department of Labor through a Form ETA 9089, using the PERM (Program Electronic Review Management) system operated by the DOL. However, they are commonly referred to simply as PERM applications.
Please our explanation of the labor certificatin (PERM) process below.
LABOR CERTIFICATION
Labor Certification (PERM) Applications are required for EB-2 and EB-3 cases, unless waived.
The most commonly used employment based categories, EB-2 and EB-3, require a petitioning employer to first obtain a certified Foreign Labor Certification (PERM) Application from the U.S. Department of Labor (DOL) before filing an I-140 Immigrant Worker petition. One of the primary purposes behind the filing of a PERM, is to ensure that the U.S. labor market has been adequately tested for qualified, willing and able U.S. citizen workers, before the applicant is approved for permanent resident status. The PERM process (the preparation and submission of a Foreign Labor Certification Application) requires a thorough testing of the labor market to see if any US workers are otherwise available (instead of allowing a foreign worker become a US worker), through a series of required recruitment steps.
The recruitment process must be carefully managed and documented. The ultimate Labor Certification application submitted to US DOL is a 10-page electronic form which relies heavily on the employer’s self-attestations, under penalty of perjury, that no qualified U.S. worker was found. An employer’s Labor Certification may be audited for a number of reasons.
Prevailing Wage: The employer must offer a salary equal to or greater than the prevailing wage for metropolitan area covering the place of intended employment.
Requirements for the Position: The employer must confirm the education, experience, and special skills required to fill the position. These requirements must represent the bona fide minimum requirements for the position. They should not be tailored to the foreign employee’s qualifications; they should not be overly restrictive (so as to disqualify all but the applicant for whom Labor Certification is sought). The foreign national must be able to document that he/she met the PERM position requirements prior to starting employment with the U.S. sponsor. There are certain exceptions.
Recruitment: The employer must describe to DOL, and later prove if asked, its recruitment efforts to demonstrate that a qualified, willing, and able US worker is not available to fill the position. All of the following recruitment efforts must be completed within a 180 day period before the PERM application filing date; with no more than one non-mandatory recruitment action occurring within the 30 days prior to filing the application.
MANDATORY RECRUITMENT STEPS
(1) JOB ORDER WITH SWA. A “Job Order” must be placed with the State Workforce Agency for at least 30 calendar days.
(2) NEWSPAPER ADVERTISEMENT. Two Sunday-edition print advertisements must be placed in a major paper serving the geographical area of intended employment.
(3) INTERNAL POSTING. A notice of the employment opportunity must be physically posted for 10 consecutive business days in a conspicuous place at the place of employment. Further, the internal posting notice must be published in any and all in-house media, in accordance with the normal recruitment procedures used for similar positions in the your organization. This would include a job board, Intranet site, newsletters, etc.
PLUS 1-of-3 ADDITIONAL RECRUITMENT STEPS
(4) JOB FAIR participation.
(5) EMPLOYER’s EXTERNAL Website Posting.
(6) JOB SEARCH WEBSITE Postings (ie, Monster.com). Web-based postings of the job opportunity made in conjunction with placement of the newspaper advertisement are considered additional recruitment.
(7) EMPLOYEE REFERRAL PROGRAMS
(8) LOCAL/ETHINC NEWSPAPER Advertisements
(9) ON CAMPUS RECRUITING.
(10) TRADE or PROFESSIONAL ORGANIZATION Media.
(11) PRIVATE EMPLOYMENT FIRM Listings
(12) RADIO or TV Advertisements
Recruitment Report and Post Recruitment: The employer must sign and maintain a detailed report describing the recruitment steps and the results achieved. If a qualified, willing, and able US applicant is found to be available for the position offered in the PERM application, the employer is not required to hire the applicant, but may not file the PERM application with the DOL.
Review of the Labor Certification application may lead to a DOL “audit”. The DOL may randomly, or for specific cause, audit applications. If an application is selected for audit, the employer will generally have 30 days to submit the required documentation. Requested documentation could include evidence of recruitment activities, resumes of applicants, prevailing wage determinations, or business justification for position requirements, etc.
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