PERM LABOR CERTIFICATIONS

Ben D. Huynh, formerly in-house immigration counsel with Motorola, Inc., a Fortune 200 company, coordinated and supervised the company’s successful labor certification filing programs for its foreign national employees. Please contact us at (972) 992-8181 or at info@bdhimmigration.com for additional information.

A Labor Certification, typically the first step in the employment-based permanent residency process, is the procedure by which the U.S. Department of Labor (DOL) determines (1) that no U.S. workers can be found who are able, available, qualified and willing to fill the position that the sponsoring U.S. employer intends to fill with a foreign national; and (2) that the foreign national’s employment will not adversely affect the wages and working conditions of similar situated U.S. workers.

The U.S. DOL requires that all new labor certification applications filed on or after March 28, 2005 must be filed under the new Program Electronic Review Management (PERM) regulations. In theory, PERM labor certification applications will be screened and either be certified (approved), denied or selected for audit within sixty (60) days of filing the application.

Highlights of PERM include:

Prevailing Wage Determinations under PERM will be obtained from the appropriate state workforce agency (i.e. Texas Workforce Commission). Employers are required to pay 100%, rather than 95% for pre-PERM labor certification applications, of the prevailing wage once the Adjustment/Permanent Residency Application (typically the third step) is approved. PERM implements a four-tier wage scale to determine the prevailing wage.

Recruitment under PERM requires the sponsoring employer to conduct a recruitment campaign for six months prior to filing the PERM labor certification application with DOL. Recruitment under PERM distinguishes between Basic (Non-Professional) Positions and Professional Positions:

Basic (Non-Professional) Positions require a job order placement and a prevailing wage determination from the state workforce agency (i.e. Texas Workforce Commission), two Sunday newspaper ads, and a job posting at the job site;

Professional Positions require a job order placement and a prevailing wage determination from the state workforce agency, two Sunday newspaper ads (or substitution of a professional journal ad for one of the newspaper ads) and three additional recruitment efforts, such as internal company website postings, internet job search postings, journal ads, radio and television ads, private employment firms, university campus placement recruitments, job fairs and/or other recruitment efforts.

The advertisement must identify the employer and job location and include a sufficient job description. It does not need to include the offered salary.

Conversion of Pending Standard or Reduction in Recruitment (RIR) labor certification applications to PERM is possible. The employer may choose to either continue with the Standard or RIR labor certification application filed prior to March 28, 2005 or to withdraw a previously filed standard or RIR labor certification application and refile under PERM. However, the refiled application must meet all of PERM’s new requirements or will otherwise be denied with a loss to the application’s original priority date.

The American Immigration Lawyers Association (AILA) has reported that since its inception on March 28, 2005, the new PERM labor certification program has plagued with technical problems with its electronic filing procedure. A number of employers and AILA attorneys have reported applications being either “denied” or marked “incomplete” based on PERM’s technical problems and highly rule-based system rather than on substantive grounds. The DOL has also struggled with its clarification of numerous prevailing wage determination issues posed by state workforce agencies nationwide.

However, PERM is very much in its infant stage, and these technical problems were expected. We are still hopeful that the PERM labor certification process will allow employers to sponsor foreign national employees for U.S. permanent residency in a more timely and efficient manner.