Employment Based Immigration Handbook
IV. PERMANENT RESIDENCY PROCESSING
IV.4 GENERAL REQUIREMENTS OF A LABOR CERTIFICATION (PERM)
The process begins with the University seeking a labor certification through the Department of Labor using their Program Electronic Review Management system (PERM). Section 212(a)(5) of the Immigration and Nationality Act (INA) essentially states that a U.S. employer may hire a foreign national for a permanent position if they can obtain from the DOL, after testing the U.S. labor market, a certification that there are not enough workers in the U.S. who are “able, willing, qualified” and the employment of the foreign national will not adversely affect the wages and working conditions of other U.S. workers who are similarly situated. Also see 20 CFR 656.1(a).
Below is a summary of some of the important steps for a Labor Certification under PERM:
1) Appointment of Counsel to assess the likelihood of the Labor Certification;
2) Analysis of minimum requirements of the prospective employment, internal policies, and review of the prospective position by Human Resources. The College or Department must submit to HR the prospective job title and job duties and receive approval prior to filing a Prevailing Wage Determination;
3) The job offer must be full time and permanent;
4) Employer Attestation/Agreement of Sponsorship and ability to fulfill employer obligations in the future (the University must have the ability to pay the promised wage in the future);
5) The offered position may never be specifically tailored for any prospective employee;
6) The prospective employee must meet the qualifications of the occupation;
7) Prevailing Wage Determination obtained from DOL;
8) Specific Employment Based Recruitment Steps/Advertisements and proper documentation of efforts by the Department;
9) Competitive Recruitment Report (faculty sponsorship) or Recruitment Report (PSA or staff positions). Any recruitment must demonstrate a good faith testing of the U.S. labor market;
10) Notice of Filing;
11) Date of Offer and Advertisement;
12) Drafting, Review, and Filing of the PERM/Labor Certification.
Note:
Each PERM application has additional steps that should be discussed with the OAG’s Appointed Counsel. In addition, the certification of a PERM does not grant a “green card,” as there are additional steps that include the filing of an I-140, Immigrant Petition, and then an I-485, Adjustment of Status. Furthermore, depending on the foreign national’s origin of birth, the Adjustment of Status may be backlogged for years. (e.g., India and China historically have per-country limitations)
The College or Department will be responsible for submitting requested documents, information, and forms to Appointed Counsel. CISP will be acting in a limited capacity as a liaison. The College or Department will be responsible for following the appointed attorney’s advice regarding all aspects of recruitment, from advertising for the position to the interview process, and all any other procedures related to labor certification. As each case will be unique, how the process develops will be contingent on the facts of the application.
Record Retention Five Years: The sponsoring College or Department should keep records of their recruitment and other steps taken for a minimum of five years from the filing of the PERM.
Timeline: As the recruitment process and processing times of the labor certification are very time-intensive, the labor certification process should begin with the Beneficiary having at least two years of H-1B time remaining. If the College or Department elects to sponsor a Labor Certification, then please be mindful of this timeline. It should be noted that the sponsoring Department may choose to initiate the process earlier if desired.
The analysis of what type of employment based filing is most appropriate may vary. It is strongly recommended that at least one year is set aside solely for analysis, recruitment, and preparation of the employment based filing. Further, although subject to change, historically the processing of a PERM application may take up to eight months to be certified; this is if it is certified, which is not a guarantee.
Once the PERM is filed, the application will be reviewed by a Certifying Officer who will issue a (1) Certification, (2) Denial, or (3) Audit Request. In the instance of an audit, the University has 30 days to respond to the Department of Labor requests. The DOL’s decision to grant or deny may take over one year, and possibly two years. In the scenario where a PERM has not been filed with 365 days of H-1B time remaining, the AC21 rules will not allow an H-1B extension.
Because any PERM filing may be audited, the sponsoring College or Department must take into consideration that any offer of sponsorship is contingent on approval and that the exceptions to extend a prospective Beneficiary’s H-1B status beyond six years may not be possible if not filed timely. Sponsoring stakeholders must keep realistic contingencies in mind and draft proposed employment offers accordingly.
Go to the next section: IV.5 Type of Offered Position Under (EB-2) Labor Certification)