What is the PERM Labor Certification Process to becoming a Permanent Resident

Rebecca Cook Black

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Immigration Attorney - Jacksonville, FL

Posted February 27, 2009

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Preparing to file the Labor Certificate

You will want a lawyer who is experienced in Labor Certification, as this process is complex w/special language. First, find a company that is willing and able to sponsor you through the entire process. The company will not only sign applications, but it must also show the ability to pay your wage over the next 3-5 years. It will need to share financial information and tax returns with the attorney preparing the applications as well as immigration. The company will need to provide a job description. Generally, the job needs to reasonably require at least 2 years experience or a 4 year degree. If the job requires experience, the alien must have earned that experience working for another company. The requirements can't be tailored specifically for the alien & the company may need to prove that the requirements are normal for the job. If the alien's degrees are from overseas, the credentials will need to be professionally evaluated by a credential evaluation company.

Prevailing Wage Determination and O-Net

The job description will be compared to the O-Net database to properly code the job. A prevailing wage determination will need to be made. Each state has as office which analyzes workforce data and job codes such as O-Net to determine what someone with the level of experience and/or education required for the job would generally earn in a given locale. The pay rate will vary not only between states but within states as well. The prevailing wage is what will need to be paid to the person once he has completed all the steps to be a permanent resident. Below is attached the link for the Virginia Prevailing Wage Request form as an example. The wage determination will take 1-2 weeks and will have an expiration date on it for labor certification purposes.

Labor Market Test via Ad Placement

The labor market must be tested to show there is no qualified citizen (USC) or LPR for the job so that the company may be certified by DOL to sponsor an alien. Ads will need to be posted with the local state workforce agency or SWA for 30 days. During that time period, an ad will be placed for 2 Sundays in the local newspaper and a notice of job availability in the workplace. If the position is a professional one, then additional ads will need to be placed as well- possibilities include professional and/or business journals; the internet, job fairs, and the company's website. After the last ad is run, there will be an additional 30 days rest period. If resumes reasonably meet the ad requirements, the company must interview the candidate. If a candidate is qualified, then the company should extend him a job offer. If the candidate is rejected, the company must document the reasons for rejection. DOL has announced it will go back to supervised recruitment this summer to avoid fraud.

Filing the Labor Certificate

While the ads are running, the company will need to register itself with the DOL. It may be required to submit documents such as proof of FEIN, leases, tax returns to prove its existence to the DOL. Once registered and once the required ads and cooling off period have run, the PERM Labor Certificate Form 9089 can be filed electronically. IF approved, the I-140 Immigrant Petition for Alien Worker must be filed within 180 days with Immigration or the Labor Certificate expires. IF denied, and if time permits, it is possible to file a new Labor Certificate correcting the reasons for denial, and using the same ads. Otherwise, the whole process must be started over. If it must be redone, analyze the reason it was denied so that the job requirements or the ads can be adjusted to make it approvable. Were the requirements abnormal for the job? Was the recruitment sufficient? Were the dates of all the ads and postings timely? Was the language such that it raised too many red flags?

Filing the I-140

Once the Labor Certificate is approved by the DOL, the I-140 must be filed within 180 days. USCIS's concern at this point is that the company is a real one, it has had the ability to pay the prevailing wage of the alien for each year that the process has been pending, that there was a bona fide job offer and the alien has the qualifications to do the job. If there is a family relationship between the alien and the sponsoring company- immigration might deny the I-140 unless you can show that there was a valid job open to any qualified USC or Permanent resident. Likewise if the company had profitability issues this past year, they may need to show assets to help defray the salary. Of course, if the alien is currently working for the company for instance while on an H-1B, then the alien's current salary can be used to show ability to pay. USCIS can question any aspect of the information contained in the Labor Certificate or I-140 application so you have be prepared to document every bit.

Filing the I-485 or Application for Permanent Residency

Once the I-140 is approved, then if a visa number is available, the I-485 application may be filed. Congress designates a certain number of visas every year per category of worker. The DOS allocates the visa numbers and publishes a visa bulletin every month. The date that the Labor Certificate was filed becomes what is known as the priority date or in other words the date the alien gets into line. Assuming there is a number available, assuming the alien is in valid status or is grandfathered in under 245(i) or has been patiently waiting outside the country all this time, and assuming that the alien has no criminal, background or health issues, then he will be able to adjust status to that of a LPR.(The overseas alien will undergo consular processing and enter the US as a LPR.) NOTE: The visa numbers have retrogressed and/or been unavailable several times since March 2005 when PERM began. If this happens, don't panic, be patient and wait, they will go forward again.

Additional Resources

USCIS, the Department of Labor, the American Immigration Lawyers Association

O-Net

Virginia Prevailing Wage Request

PERM Registration and Filing

Visa Bulletin

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