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OFLC Announces Permanent Issuance of Electronic PERM Labor Certifications

The DOL Office of Foreign Labor Certification (OFLC) is permanently adopting electronic issuance of PERM labor certifications to employers. In circumstances where employers submit PERM applications by mail and are unable to receive the certified ETA Form 9089 documents by email, OFLC will continue to send the documents by mail.

Have no family in the U.S.? Try immigrating through Employment.

Question: Hello. I have no family in the U.S., but would very much like to immigrate to the U.S. I am educated. Is there any other way?

Answer: Yes, you can be petitioned through employment through what is known as the PERM. There are 3 major steps to obtaining a Green Card through Employer Sponsorship: 1) Labor Certification through the PERM process. 2) I-140 Immigrant Petition for Alien Worker and 3) I-485 Application to Register Permanent Residence.

Question: What are the typical PERM processing times?

Answer: Un-Audited cases take around 2-3 months from filing to certification and audited Cases: 8 months from filing to certification.

Question: Can you give a general overview of the PERM process?

Answer:  PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position. The employer must be prepared to hire the foreign worker on a full-time and permanent basis. There must be a bona fide job opening available to U.S. workers.

Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Question: Must the employer pay a certain amount for the position?

BALCA Overturns Denial, Confirms Employer Need Not Abide by “Most Likely” Standard for Local/Ethnic Ad

BALCA overturned the Certifying Officer’s denial of the labor certification, finding that the regulations that control placement of Sunday ads versus local and ethnic ads differ, and that the employer was not required to place the local ad in the newspaper “most likely to bring responses.”

BALCA Applies Reasoning from Smartzip and Overturns H.14 Denial

Applying the reasoning from Smartzip Analytics, BALCA reversed the Certifying Officer’s denial of the labor certification, finding that an application cannot be deniedon its face based on a failure to provide a duration requirement for special skills listed in Section H.14 of the ETA Form 9089, short of legally sufficient notice of a requirement to do so.

BALCA Reverses Denial due to due process

BALCA reversed the Certifying Officer’s denial and remanded the matter for certification where DOL had faulted the employer for not listing a relocation requirement in recruitment advertising and on the ETA Form 9089 for a position with a primary work site “and various unanticipated locations throughout the U.S.” The employer had relied on the 1994 Barbara Farmer Memo, which BALCA agreed makes no distinction between travel and relocation. BALCA further opined that it was not fundamentally fair to require that the possibility of relocation be specifically disclosed in the advertisement and application in absence of notice or guidance, particularly when the organized immigration bar has been pressing OFLC for years to clarify issues related to “roving” employees.

BALCA Upholds Denial of Second PERM Filing Where First PERM Was Pending BALCA Review

BALCA affirmed the Certifying Officer’s denial of the labor certification, finding that the employer filed two PERM applications with “substantially comparable job duties,” and holding that an employer may not file a new PERM application for the same foreign worker for the same job opportunity when the first application is pending BALCA review.

BALCA Upheld SR Denial Where Employer Claimed Notice was Not Received

BALCA affirmed the denial of a labor certification undergoing supervised recruitment (SR) where the employer claimed it did not receive the revised draft advertisement. BALCA noted that the record did not reflect a change of address for the employer or attorney during the relevant time period. Further, the correction letter was addressed to the same mailing address for the employer and attorney as the notification and the denial, which were received.

BALCA Affirms Denial Where Employer’s Agent Signed Recruitment Report

BALCA upheld the denial of the labor certification where the recruitment report was signed by an agent, rather than the employer, in direct violation of 20 CFR §656.17(g)(1), which requires either the employer or its representative to sign the recruitment report.

PERM’s must be prepared properly

Approximately 30 percent of all PERM cases are audited, and half of those cases are denied. Thus, you should make sure the PERM is professionally prepared.

BALCA overturns denial of Labor Cert

BALCA overturned the Certifying Officer’s denial and ordered that the labor certification be granted, holding that Notice of Filing (NOF) regulations only require the NOF to contain information specific enough to apprise U.S. workers of the job opportunity, and do not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment.

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