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Permanent Labor Certification
(Green Card through employment/PERM)

A permanent labor certification issued by the Department of Labor (DOL) is the first step to allow an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The DOL processes Applications for Permanent Employment Certification. The date the labor certification application is accepted for processing is known as the filing date and is referred to by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the appropriate USCIS service center with a From I-140, Immigrant Petition for Alien Worker.

Qualifying Criteria

Applications filed on or after March 28, 2005 must be filed using the new electronic PERM (Permanent Online System Web site) was developed for the Department of Labor (DOL), as well as process and adhere to the new PERM regulations. In order for the Labor Certification Application to be approved, the following qualifying criteria must be met:

  1. The job opportunity must be for a full time, permanent position.
  2. There must be a bona fide job opening available to U.S. workers.
  3. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

  1. Application. The employer must complete an Application for Permanent Employment Certification. In the application, the employer must outline the recruitment undertaken as well as describe the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work. In addition, the foreign worker's relevant education and work experience, if any, must be provided.
     
  2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the National Processing Center (NPC). Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
     
  3. Prevailing wage. Prior to filing the Labor Certification Application, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
     
  4. Pre-Filing Recruitment Steps. All employers filing the Labor Certification Application (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.

    The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
     
  5. Audits/requests for information: Supporting documentation need not be filed with the Labor Certification Application, but the employer must provide the required supporting documentation if the employer's application is selected for an audit or if the Certifying Officer otherwise requests it.
     
  6. Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the Labor Certification Application. For example, the SWA prevailing wage determination documentation is not submitted with the application, but must be retained for a period of five years from the date of filing the application by the employer.
     
  7. Online filing. The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed.
     
  8. Approvals. If the National Processing Center approves the application, the Labor Certification Application is "certified" (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application.

The USCIS Petition

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS). The employer then attaches the certified Labor Certification Application to a completed USCIS Form I-140, along with the appropriate fees, and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.

Please contact the LL.M. Law Group to assist you with the Labor Certification Application and USCIS petition.

 

 

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