PERM LABOR CERTIFICATIONS INFORMATION

Conversion of an already pending RIR to PERM

The fundamental difference between converting a RIR to a PERM and simply filing a new labor certification under PERM is the "priority date" under which the original application was filed. Such date is crucial, especially for applicants who are citizens of China, India, and the Philippines, whose permanent residency (green card) applications are subjected to a heavy backlog.

Another matter to be considered before converting from RIR to PERM would be the nature of the job under the old application. A pending labor certification can be converted only if it is for the "identical job opportunity." Any changes, even if minor, might prevent from a successful conversion.

Six months prior to filing an application, employers are required to place a job order with the SWA, place a notice of posting at the worksite, and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods. Recruitment documentation, although not to be filed with the application, must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

Following submission of the PERM labor certification application, the DOL may perform an audit of the employer. Audits will either be based on various selected criteria or conducted randomly.

If DOL audits a case, then it will send an audit letter requesting additional documentation to be submitted within 30 days of the audit letter, although the (Certifying Officer) CO has the discretion to grant an extension by up to 30 days. The documentation will be reviewed by an Employment and Training Administration (ETA) official and either certified or denied. The CO also has the authority to request additional information before making a final determination. In addition, the CO has broad discretion in audited cases of ordering the employer to conduct supervised recruiting.

If the CO decides that the labor certification should be granted, the officer will send the certified application and complete Final Determination to the employer or the employer's attorney or agent indicating that the next step is to file the form along with an immigrant petition to the U.S. Citizenship and Immigration Services.

If the CO decides the case is to be denied, a Final Determination shall issue. The employer will have 30 days to appeal the determination. A new application may be filed at any time, although a new application in the same occupation for the same worker cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.

If the CO finds that the employer failed to produce required documentation, the documentation was inadequate, finds that a material misrepresentation was made, or finds it otherwise appropriate, the employer may be required to conduct supervised recruitment in future labor certification filings for a period of up to two years from the date of the Final Determination.

Process for Filing under PERM

• Application. The employer must complete an Application for Permanent Employment Certification. The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.
• Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
• Prevailing wage. Prior to filing the ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
• Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
• The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)
  • if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)
  • Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
• Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
• Re-filing. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may re-file by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
• Online filing. The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
• Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Payment System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System.
  
  By completing an Employer Profile, you will be able to: Save time by pre-populating your general information, View the status of your labor certification applications online, Update your profile information online ,Track newly submitted labor certification applications, Email saved labor certification applications to others within the company , Add new users to your account, Withdraw labor certification applications no longer needed
• Filing by mail. National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located. If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application. We have added FAQs concerning the Permanent regulation that went into effect on March 28, 2005.

The USCIS Petition

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS), Form I-140. The employer then attaches the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees, and submits the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approved labor certification and other USCIS specified documentation.

Schedule A Occupations

Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed.

• Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
• Professional Nurses - the alien
  • has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate,
  • the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) exam, or
  • the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
• Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
• Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

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