Green Card with Labor Certification
Immigrant visas (“green cards” or permanent resident status) are available to persons whom the Department of Labor (DOL) certifies as having an offer of permanent, full-time employment (at least 35 hours per week) for a job for which there is a demonstrated shortage of qualified U.S. workers.
The Program Electronic Review Management (PERM) program involves employer attestations and extensive record keeping requirements concerning the employer’s labor market test, however, as with tax returns, employer labor certification records can be audited by DOL. PERM applications are filed electronically.
The employer’s recruitment and other mandatory records are only examined by DOL if there is an audit. PERM requires the employer to test the labor market for qualified U.S. workers at a wage that is 100% of the prevailing wage. PERM’s recruitment requirements are either more, or less extensive than under the previous (pre-2005) labor certification system, depending on the employer’s location.
As before, labor certification cannot be granted if the employer’s labor market test locates qualified U.S. workers, however, the employer is not required to hire qualified U.S. workers who respond to their labor market test.
Prevailing Wage Requirement
When testing the labor market for qualified U.S. workers, DOL requires that the wage offered be equal to or greater than the “prevailing wage” for the type of work to be performed. DOL determines the current prevailing wage for jobs in particular geographic areas based, in part, on the amount of experience required by the employer.
The prevailing wages under PERM cover four levels. The prevailing wage is obtained from DOL at the start of the case and it must be paid when the beneficiary becomes a permanent resident, not at the time of filing a PERM application, although the employer must demonstrate an ability to pay the prevailing wage at the time the PERM application is filed.
PERM labor certification requires the employer to conduct recruitment no more than 180 days, and no fewer than 30 days, prior to filing DOL. Recruitment under PERM can be concentrated and conducted over a brief span and no longer need to be spread over a period of several weeks or months. Moreover, PERM establishes different levels of recruitment for non-professional and professional positions.
The employer’s recruitment efforts and the labor certification application must reflect the employer’s minimum educational, experience, and any special requirements for the position, both in conformity with DOL rules, and as justified by the employer’s business needs. U.S. workers, which include citizens, permanent residents, and foreign nationals authorized to work permanently in the U.S., may be rejected only for lawful job related reasons.
Recruitment Requirements for All Positions
Recruitment must be conducted at least 30, but less than 180 days prior to filing the application. Specifically, the employer must post a notice of the job opportunity at the job site for at least ten consecutive business days; utilize any and all in-house media; place a thirty (30) day job order with the DOL state workforce agency (SWA) having jurisdiction over the place of employment; and place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment.
A Posting Notice must be placed on the employer’s premises (or at the place of intended employment) for ten (10) consecutive business days. This requirement cannot be waived. This Posting Notice must indicate the wage offered but can be a wage range, the lower end of which must meet or exceed the DOL’s prevailing wage.
All in-house media must be utilized to recruit for the position in accordance with normal procedures for recruitment of similar positions in the organization. Use of in-house media includes available print and electronic means. Utilizing this form of recruitment should be handled in a manner consistent with its use when recruiting for other similar positions in the organization. The duration of the in-house media notification should be as long as other comparable positions are posted.
The thirty (30) day job order with the SWA allows the SWA to forward to the employer the resumes of individuals who responded to the job order. Practically speaking, SWA referrals probably will be infrequent in most cases.
The employer’s two print advertisements must be placed in a newspaper of general circulation in the intended area of employment and may be placed on consecutive Sundays. The advertisement must list the name of the employer, the city or geographic area of employment, and a description of the position specific enough to apprise workers of the job opportunity.
The ad must direct applicants to send resumes or report to the employer and provide an appropriate address. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.
Additional Recruitment Requirements for Professional Positions
Professional positions are those that require at least a Bachelor’s or higher degree to perform the job duties. DOL has published a list of occupations that it considers to be professional, though professional positions are not limited to those indicated on this list.
If the employee being sponsored for permanent resident status holds H-1B status or if the minimum requirements to be stated on the application form indicate that a bachelor’s or higher degree is required, the position is deemed professional. These types of positions require that the employer use at least three (3) different, additional types of recruitment from the following options:
- Job fairs.
- The employer’s web site.
- A job search website other than the employer’s. (Please note that a web page advertisement generated in conjunction with a print advertisement meets this requirement.)
- On-campus recruitment.
- Trade or professional organizations.
- Private employment firms.
- An employee referral program if it includes identifiable incentives.
- A notice of the job opening at a campus placement office, if the job requires a degree but no experience.
- Local and ethnic newspapers, to the extent they are appropriate for the job opportunity.
- Radio and television advertisements.
The Employer’s Recruitment Report
A post- recruitment report must be prepared and maintained that describes the recruitment steps taken and the results. This report must indicate the number of U.S. workers rejected, categorized by the lawful, job-related reasons for rejection.
An applicant’s failure to meet the employer’s stated minimum requirements is a lawful reason for rejection, however, if a worker lacks a skill that may be acquired during a “reasonable period” (the definition of which will vary by occupation, industry, and position) of on-the-job training, the lack of that skill is not a lawful basis for rejecting an otherwise qualified workers. This and other required documentation must be carefully prepared with the assistance of counsel and must be retained by the employer for a period of five years from the date of filing.
Filing a PERM Application
PERM applications require completion of Form ETA-9089, Application for Permanent Employment Certification, and are best filed via the internet. Employers, through counsel, access the appropriate website, complete the form as prepared by our office, and submit the form to DOL. Incomplete applications will be denied.
A priority date (the foreign national’s place in line for his/her immigrant visa) is assigned the date the application is accepted for filing by DOL. A copy of the completed form must be maintained in the employer’s records. Once the form is certified by DOL, the employer must sign the form and place a copy of the signed form in the records. The original Form ETA-9089 certified by DOL and signed by the employer must accompany the immigrant petition filed with U.S. Citizenship and Immigration Services (USCIS).
No supporting documentation is submitted to DOL with Form ETA-9089. Instead, the employer must maintain supporting documentation of the recruitment efforts and results in the event an audit is required or the DOL otherwise requests certain documents. Our firm assists employers in compiling and organizing these documents, which must be retained for a period of five years from the date of filing Form ETA-9089.
DOL Audits and Supervised Recruitment
A DOL audit can result in a request to review all or part of the employer’s case file and the recruitment undertaken for the submitted PERM application. These audits will be both “triggered” and random. An employer will have thirty (30) days to respond to the audit request, and after a review of the documentation, DOL can request additional documentation, request that the employer conduct supervised recruitment, or approve or deny the case.
Supervised recruitment can be ordered by DOL after receipt of an audit response or as part of mandated supervised recruitment when an employer has failed to respond to an audit letter. Under supervised recruitment, DOL reviews all advertisements and instructs the employer where and for how long to place the advertisement.
Applicants will submit requested documentation to DOL which will forward it to the employer. Moreover, the employer will be required to submit a more detailed recruitment report to DOL for PERM applications.
DOL is authorized to review an employer’s case file and all documents associated with a PERM application for a period of up to five (5) years from the date the application was submitted. In essence, this is a window during which an approved labor certification may be investigated by DOL, the Department of Homeland Security, or the State Department find a determination of fraud or willful misrepresentation of a material fact involving the labor certification application.
Special Rules for Live-In Domestics
PERM rules for live-in domestic workers are basically the same as under the previous system, however the documentation requirements are more substantial. As with other cases, the supporting documents will not be filed with the Form ETA-9089, but must be retained in the employer’s files in the event of an audit by DOL. Specifically, the following three documents must be maintained:
- A statement describing the worker’s living accommodations including whether the residence is a house or apartment, number of rooms, number of adults and children in the household, and indicating that free board and a private room is provided.
- Two copies of the employment contract. The contract must include hourly/weekly wage, daily and weekly hours to be worked, worker’s freedom to leave premises during offhours (except that overtime pay will be provided), worker will reside on employer’s premises, total amount of money to be advanced to the worker, worker not required to give more than two weeks’ notice, employer must give worker at least two weeks notice of intent to terminate employment, a copy of the contract has been given to the worker, private room and board provided, and any agreement or condition not specified on the Form ETA-9089.
- Documentation of the worker’s paid experience amounting to at least one year of fulltime employment.
U.S. Citizenship and Immigration Services & Consular Processing
Upon approval of the PERM labor certification application by DOL, an immigrant visa petition is submitted by the employer to USCIS. Basic information about the employer’s business, such as its number of employees and annual revenues, and a signature are required for this petition.
It is the policy of USCIS to require verification of most employers’ ability to pay the wage offered in the labor certification application at the time the labor certification was filed. Financial documentation may be in the form of W-2 forms, income tax returns, audited financial statement, or other documentation that adequately demonstrates the employer’s ability to pay the offered wage. Evidence that the employee possessed the required education, experience, and/or special skills at the time the labor certification was filed also must be submitted.
The final step in the process of obtaining permanent resident status involves one of two processes: adjustment of status in the U.S., or consular processing abroad. In either case, the end result is permanent resident (“green card”) status; however, there are considerable differences in these two avenues to that ultimate goal, and which is available or most desirable depends on the individual facts of each case. Importantly.
An application for adjustment of status may not be filed, and a final consular interview may not be scheduled unless the foreign national’s priority date is “current,” according to the Department of State’s monthly Visa Bulletin, which sets forth immigrant visa availability by preference category and by country of birth. Permanent resident status based upon labor certification is available under the Employment-base Second and Third preferences, with a special line for so-called “other workers,” in the Third preference i.e., those whose jobs require less than two years of education, experience or training. Lines are now common for persons born in India, China, and the Philippines, and for other nationals depending on their preference category.
For an approved labor certification application to be valid, the employer must intend to employ the individual sponsored full-time, in the position offered, and in the same geographic area once immigrant status has been accorded. In other words, labor certification is both job specific, employer specific, and specific to a particular Statistical Metropolitan Area. The employer’s intentions must be reiterated shortly before the immigrant visa is issued.
The beneficiary of the labor certification must assume the job offered in the labor certification application once permanent residence is granted and must intend to work for the employer indefinitely. However, the law does not require a minimum period of employment in the position offered after the job is assumed. A partial exception to these rules exists for persons whose adjustment of status applications have been pending before the CIS for more than 180 days. Under those circumstances, the employee may continue his/her case without prejudice if he or she acquires another job which is the same, or similar to the job in the labor certification application.
The Immigration Reform and Control Act (IRCA) of 1986 provides that employers who knowingly employ aliens unauthorized to work can face civil fines unless the employee was employed prior to November 7, 1986. IRCA also requires employers to scrutinize all employees, regardless of citizenship status, about their right to work and to keep records about this. A grant of labor certification does not authorize a non-citizen to work. This occurs when permanent resident status is granted unless there is alternative eligibility for employment authorization, such as H-1B, L-1A or L-1B status, or based upon a pending adjustment of status application.
In employment-based immigration cases, the attorney represents both the petitioning employer and the employee-beneficiary. In this type of immigration case, only a petitioning employer can file the labor certification application and immigrant visa petition while only the foreign national can file the remaining applications required to complete the case. Therefore, the attorney must be authorized to represent both the employer and the foreign national.
Attorneys are permitted to represent two parties simultaneously, if so authorized, unless their interests conflict. Representing two parties simultaneously in one matter also requires an attorney to be equally loyal to both parties. Under those rare occasions when a conflict of interest develops between a petitioning employer and the employee-beneficiary, the attorney cannot take sides regardless of which party pays the attorney fees, and, the attorney must withdraw from representing both parties unless one party consents to the attorney’s continued representation of the other party.
If you, or a potential employee, needs assistance with a Green Card with Labor Certification, please call Gordon Law Group PC at (415) 284-1601.