Perm & Labor Certification |
General Information:
A “Labor Certification” is a documents issued by the U.S. Department of Labor
(US DOL) certifying that a shortage of qualified U.S. workers exists to fill a
position, which a US Employer is offering to a foreign national. Certification
can only be approved if the US Employer show the position cannot be filed by a
qualified American worker. One of the most important factors in the ultimate
success of a labor certification is a correct determination of the minimum
requirements needed to perform the job. Because this factor is so critical, our
office staff spend a significant amount of time obtaining and digesting
information and documents on each case and only then assist the US Employer with
drafting the appropriate job description.
PERM
Effective March 28, 2005 the US Department of Labor is processing Labor
Certifications within approximately sixty (60) days, using a new process,
referred to as the “PERM”. The “PERM" is a Permanent Electronic Review
Management, which is used by the US DOL to review and make decisions on Labor
Certification applications. Contrary to the previous Labor Certification filing
procedures, the PERM requires the Employer to retain all documents concerning
recruitment steps, for a period of five years. In addition, under the PERM,
occupations are classified as “professional” or “nonprofessional” and each
classification has unique and complex recruitment requirements.
Basic requirements of a proposed position:
a. It must be a full time position;
b. It must be a permanent position (although the employment relationship can be
terminated at any time after the foreign national permanent residency is
approved);
c. The Job requirements must be reasonable and not unusual
unless it can be justified and pass the “Business Necessity
Test”. For example, a foreign language can be a reasonable
requirement for a Translator position, but may be unreasonable
for a Computer Analyst. However, it may be justified if the
Computer Analyst duties include the use of a foreign language
and its use is necessary for the business
d. The Employer must pay the foreign national the “Prevailing Wages”, which is
basically the average salary for the position in the area intended employment.
Visa Petition:
After the labor certification application is approved, the alien must next wait
for a Visa number and apply for a green card, since green cards under this
category are subject to annual quota. The
Visa Bulletin indicates the waiting period for a Visa number. The
purpose of the visa petition is to prove to the Immigration
Service that: (a) the job has been certified by the Department
of Labor; (b) the foreign national meet all of the requirements
listed on the labor certification; and (c) that the employer has
sufficient resources to pay the prevailing wages. This step will
also establish the immigrant preference classification (EB-1,
EB-2 OR EB-3), which will determine how long it will take to
obtain legal permanent residence status (since, as indicated
above visa numbers in this category are subject to annual quota
and waiting period of several years
During the visa petition phase, it will be necessary to submit documentation
from the employer demonstrating its ability to pay your salary, which may
include copy of federal tax returns for the past two years. In addition, at this
step there is a need to submit documentation regarding proof of the employee
education and experience. By the time the Visa petition is filed, it must be
determined whether the employee will apply for permanent residency here in the
United States, or for an Immigrant Visa at an American Consulate abroad.
Most applications for permanent residence are being processed in the United
States. There are, however, reasons that may dictate processing through an
American Consulate in your home country such as the need for frequent travel
abroad, local USCIS time delays or ineligibility for processing in the United
States.
H-1B and Labor Certification:
An Employee holding an H-1B status who has a labor certification or a Visa
Petition on file (or approved) for 365 days prior to the expiration of the six
years may extend their H-1B status beyond the sixth year limit. Such H-1B
extensions are issued in one-year increments OR three-year increments if the
waiting period for the employee’s country of citizenship is very long.
