Labor Certification – PERM
In March 2005, the Department of Labor introduced a new way to process Labor Certifications called PERM.
The PERM program still maintains the underlying policy for Labor Certifications:
- The employer must prove that the position cannot be filled by a U.S. citizen or permanent resident, and;
- The employer must show that employing a foreign national will not adversely affect U.S. wages and working conditions.
- Both the position and the foreign national must meet certain criteria to get a Labor
Certification approved, including the following:
- The position offered must be full-time and permanent. The employer must define minimum levels of work experience or educational requirements, in line with the industry standards.
- The foreign national must possess the required education and/or work experience for the position.
- The employer must demonstrate that they have conducted recruitment efforts according to PERM regulations and that they have not been able to locate a qualified U.S. worker for The employer must also document their financial ability to pay the salary offered, which must equal at least the prevailing wage for the position. Typical recruitment consists of advertising the position with the state workforce agency in the area of intended employment and two newspaper advertisements. For professional positions, a further three forms of recruitment, such as placing an advertisement on a job search website, in a local or ethnic paper or on the employer website, is required. All recruitment must take place within 180 days before the labor certification is filed. The employer is not required to submit the supporting documentation at the time of filing a PERM application; however, the employer must retain the documentation for 5 years for audit purposes.
Once an approved Labor Certification is obtained, the foreign national can either apply directly for adjustment of status to permanent residence or file an immigrant visa petition.
Special Recruitment for College, University and Medical School Teachers
College, university and medical school teachers may take advantage of the “special recruitment” procedure using a competitive recruitment and selection process whereby the employer need only show that the applicant was more qualified than other applicants. The application process is faster and more streamlined than the standard PERM application. The employer may rely upon recruitment done during the 18 months prior to the foreign national’s appointment to the position in question. Only one print advertisement in a national journal and some additional in-house or online recruitment are required.
Labor Certification and H-1B Extensions beyond Six Years
Many foreign nationals are already working in the United States in H-1B status. While the maximum time allowed in H-1B status is six years, they are either reaching their sixth year still waiting for the result of their pending labor certification applications or they have immigrant visa petitions in a preference category, e.g. Skilled Worker for which no Green Cards are available. Now the law allows a foreign national who has had a labor certification application pending for more than 365 days, or who has an approved immigrant visa petition but cannot adjust due to visa retrogression, to extend his H-1B status in one- year increments until the labor certification is approved, or for a three-year period until the priority date is current and he can apply for a Green Card.
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