PERMANENT RESIDENCE THROUGH THE
PERM LABOR CERTIFICATION PROCESS
Please Note: The Law
Offices of David D. Murray no longer handles Labor Certifications.
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
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"
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
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
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
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
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
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.
Labor certifications 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.
Please see our Contact Page
for our email address.
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