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Bashyam Spiro LLP - PERM Labor Certification Process
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Bashyam Spiro LLP - PERM Labor Certification Process

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  • 1. Re-engineered Permanent Labor Certification Program (PERM)
  • 2. History and Background
    • A labor certification is required prior to petitioning the USCIS for permanent residence (“green card”) for certain employment-based immigrant visas.
    • DOL certifies 1) not sufficient U.S. workers and 2) no adverse effect on U.S. workers
  • 3. History and Background
    • Previous process criticized as:
    • Complex
    • Time consuming
    • Resource intensive
    • Duplicative
    • New system streamlines process
  • 4. Highlights of PERM
    • Employers must conduct recruitment before filing applications
    • SWAs provide prevailing wage determinations, but will no longer accept or process labor certifications
    • Employers have the option of web-based filing
    • Must offer at least 100% of the prevailing wage
    • Employer retains supporting documentation for audit purposes for five (5) years
    • Business necessity included in final rule
    • DOL estimated to make decision within 45-60 days
  • 5. Prevailing Wage Determination
    • Request prevailing wage determination from SWA on their form
    • Validity period 90 days to 1 year from determination date
    • Employers must file their applications or begin recruitment within the validity period specified by SWA
    • 4-tier wage levels
  • 6. Pre-filing Recruitment
    • Separate recruitment requirements for Professional and Nonprofessional occupations
    • Professional occupations are listed in Appendix A to the Preamble
    • All occupations not listed in Appendix A to the Preamble are considered non-professional for the purposes of recruitment
  • 7. Pre-filing Recruitment (Cont’d)
    • Placement of job order with SWA
    • Two Sunday newspaper advertisements – professional journal optional in certain cases
    • Additional recruitment steps for professional occupations (3 of the following)
    • - The employer’s web site
    • - Job fairs
    • - Job search web sites
    • - Private employment agencies
    • - On-campus recruitment
    • - Trade or professional organization
    • - Employee referral program
    • - Campus placement office postings
    • - Radio and television ads
    • Must conduct 2 out of 3 forms of recruitment w/i 30-180 day period PRIOR to filing application
  • 8. Contents of Advertisement
    • Employer name
    • Wage rate (optional)
    • Description of vacancy and geographic area of employment
    • Direct applications to report to, or send resumes to the employer
  • 9. Job Opportunity
    • Business necessity (BN) available
    • No foreign language requirement, unless justified by BN
    • Combination of occupations permitted when justified
    • Alternative experience requirements permitted
  • 10. Job Opportunity (cont.)
    • Job requirements must represent employer’s actual minimum requirements
    • Alien’s background must satisfy actual minimum requirements
    • Alien’s qualifying experience cannot be gained with the employer, except in limited circumstances
    • Definition of ‘employer’ determined by EIN
  • 11. Other Requirements
    • Notification to laid-off U.S. workers by the employer applicant
    • Prohibition against alien influence and control over job opportunity
    • Other layoff rules if within 6 months of filing LC
  • 12. Recruitment Report
    • Recruitment steps undertaken
    • Results achieved and lawful reasons for rejection of U.S. workers
    • Maintain resumes/application materials for documentation/audit purposes (5 years)
  • 13. Audit Letters
    • Based on 1) review of applications and 2) selection for quality control purposes
    • Must submit required documentation based on particulars of application
    • 30-day response time for submittal of application documentation – 1 extension at COs discretion
    • Failure to comply – application denied and future applications audited
    • Application may be denied after review of supplied documents
    • Supervised recruitment may be ordered by the CO (3-day newspaper, incl. Sunday, and 30 day JO)
  • 14. Fraud, Revocation, Other Issues
    • If possible fraud discovered before certification, referred to USCIS, DOL Inspector General
    • If fraud found, application invalidated and processing terminated
    • CO can revoke approved LC if finds certification was not justified (What does that mean?)
    • No time limit on COs ability to revoke a certification
  • 15. Re-filing of Pending Cases
    • Re-filing applications under PERM
    • - must meet final rule recruitment requirements (means employers may need to conduct additional recruitment)
    • - must be identical application
    • - current application considered withdrawn (re-file considered a withdrawal; must re-file within 120 days)
    • - re-filed applications may take longer to process than other ETA Form 9089s
  • 16. Strategic Considerations
    • Advantages of filing before PERM
    • Less costly recruitment
    • Lock in Priority Date – (EB3 Retrogression)
    • Re-filing under PERM – Potential to Lose Priority Date
    • H-1B 7 th Year Extension Issues
  • 17.
    • THANK YOU
    • Bashyam & Spiro, LLP
    • Tel: 919-833-0840
    • www.bashyamspiro.com