Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

 Question: I understand that PERM applications will be able to be filed starting at the end of March. Also, I understand that there has to be pre-recruitment prior to the filing of the PERM application. My question is whether the process to see whether an applicant is qualified or not qualified for the position is the same. What must be done and what must be documented?

Answer: Prior to PERM, the applicant had to meet any and all requirements for the position. If they did not meet any requirement in particular, then they were not qualified for the position and the employer would be able to disqualify the applicant.

However, there is a new provision in the PERM requirements that do make it more difficult to show that a potential employee is disqualified for the position. Under PERM, if the potential applicant does not have each and every one of the requirements of the position, he or she cannot immediately be disqualified. The PERM regulations state that if the potential employee could be trained on the job in a reasonable amount of time that he or she cannot be disqualified and they must be considered to be eligible for the position.

Question: If they are eligible for the position, what exactly does that mean?

Answer: It means that the PERM labor certification is over and that the position cannot be certified because there are available U.S. workers for the position.

Question: What can be done to avoid this happening?

Answer: There will be several ways to try to avoid this. However, most clearly would be the attempt to make the position more difficult and to make the position so that it had more qualifications necessary. The employer would have to try to show that the potential employee could not be trained in a reasonable amount of time. While it is still somewhat early to determine what may and may not work, it would seem that if the employer was a smaller employer, that they may not have the time or resources to train a person for the position. It is entirely plausible that if a small employer has to train a new person, that by time that person is up and running that the business of the employer may be suffering. Also, the higher the qualifications needed in order to perform the positions, the harder it will be to show that they can be immediately trained or trained within a reasonable time. There should be more specificity in the job. For example, instead of stating that there should be a chef. It should state that there should be a chef with Middle Eastern or Asian experience. It should state the type of dishes necessary for the person to accurately perform the duties of the position.

While we are in new territory here, if the PERM is prepared carefully, it still appears to be a much better alternative than the old RIR Labor Certification system.

Filed under: Immigration Law, immigration provisions, Labor Certification, PERM, USCIS | Tagged: Labor Certification, PERM | Leave a comment »

 Question: I have heard a great deal about the new PERM program. Specifically, that it will take only 60 days or less to rule on the PERM application once it is submitted to the Department of Labor. Does this mean that I can immediately apply for a Green Card after receiving an approved Labor Certification?

Answer: The answer would be yes and no depending on your particular case. The normal procedure for a typical Labor Certification (which is what the new PERM is) would be for the employer to file what is known as the I-140 or employer petition once the Labor Certification is certified or approved. This petition is filed to the USCIS and basically would prove that the person is qualified for the position. If the visa number is available at the time the I-140 petition is filed, then the Adjustment of Status application could be filed at the same time as the I-140. In these types of cases, both subsequent applications to the labor certification could be filed at the same time and things would move very quickly. Of course, this also assumes that you are qualified to adjust your status in the United States to that of Lawful Permanent Residency.

However, in the last month, the EB-3 category for some countries has been backlogged and now has a significant wait before the visa number will become current. There are several categories that people fall under when applying for the Green Card. If the position requires less than two years experience, then it is considered unskilled labor. If the position requires more than two years experience, but does not require a college degree of at least a bachelor, then it is considered skilled labor. If the position requires a bachelor degree, but no type of higher degree, then it is considered a professional position. Thus, unskilled labor, skilled labor and professional positions all fall under the EB-3 category. If the visa number is backlogged, then you must await until the visa number becomes current in order to apply to adjust your status to that of a Lawful Permanent Resident.

Question: Which countries have backlogged EB-3 categories and how long do they have to wait?

Answer: There are three countries that are backlogged. They are China, India and the Philippines. If you happen to be from one of those countries, you must wait until the visa number becomes current in order to process the adjustment application after the visa number becomes current. At the present time, the current processing date is January 2002. Therefore, only if the priority date on the Labor Certification that you filed is on or before January 2002 will you actually be able to file the adjustment application at the present time. It does appear (although this could certainly change) that the wait for people in the EB-3 category would have to wait approximately 3 years for the visa number to be current for any new PERM application that is filed. Of course, it could be more or less depending on how fast the visa numbers are processed.

Question: What if I am from one of those countries, but my job requires a Masters or Doctorate degree?

Answer: In that case, you would not be in the EB-3 category, but rather, you would be in the EB-2 category for positions that require advanced degrees. If this were the case, there is no backlog and you would be able to file the adjustment application right away after the Labor Certification is approved.

Filed under: Immigration Law, immigration provisions, Labor Certification, PERM, USCIS | Tagged: Labor Certification, PERM | Leave a comment »

Question: I know that PERM is now going to be the way that Labor Certifications are supposed to be done. However, I am very confused on how to do the advertising. Can you please let me know what must be done?

Answer: There are very specific rules for advertising. However, there are also requirements that are somewhat specific to the organization. First, notice of the job must be posted at the employer’s facility or location of the employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of where other required work documents are necessary to be posted.

Question: Other than the Job Posting is there other types of advertising the employer must do in their place of employment.

Answer: Yes. In addition to the Job Posting, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization. The documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer’s organization.

Thus, whatever the normal in-house procedures have been used for non PERM employees must be used for the prospective PERM employee.

Question: What other type of advertising must be done?

Answer: Each PERM application must be done through what is known as pre-filing recruitment. Therefore, the advertising must be done prior to the PERM being filed with the Department of Labor. There are two basic categories of advertising that must be done. First, is for the ‘Professional’ and the second is for the ‘Nonprofessional’. The Department of Labor defines a Professional as a position that requires at least a college degree.

The pre-advertising must be done no more than six months prior to the filing of the PERM application and at least 30 days. There must be two print-ads and one Job Order. A Job Order is placed with the State Workforce Agency or SWA. The start and end dates of the job order entered on the application serves as documentation that this step was done.

The advertisements must be in a newspaper or professional journals (if it is a Professional job.) The advertisement must be placed on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.

Question: What exactly must be in the advertisement?

Answer: The advertisement must (1) name the employer; (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer; (3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; 4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; (5) Not contain a wage rate lower than the prevailing wage rate; (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

Question: Must a professional advertise in the papers and a professional journal?

Answer: No. If the job requires an advanced degree and experience and a Professional Journal would normally be used to advertise the position, then one of the Sunday advertisements can be substituted in with a Professional Journal advertisement.

Question: Is there anything else needed for the advertising? If it is a professional position, then there must be further recruitment steps. The employer must pick three additional recruitment steps. Only one of the three can actually be within 30 days of filing the application. The rest must be no more than 180 days of filing the application. (A) Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair; (B) Employer’s Web site. The use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application; (C) Job search Web site other than the employer’s. The use of a job search Web site other than the employer’s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements of this section can serve as documentation of the use of a Web site other than the employer’s; (D) On-campus recruiting. The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation; (E) Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification; (F) Private employment firms; (G) Employee referral program with incentives; (H) Campus placement offices. (I) Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement and/or (J) Radio and television advertisements.

Remember, that the other outside advertising needed for a nonprofessional would simply be the two advertisements in Sunday in a paper of general circulation and the SWA 30 day Job Order.

Filed under: Immigration Law, immigration provisions, Labor Certification, PERM, USCIS | Tagged: Labor Certification, PERM | 1 Comment »

Question: I am planning on filing a Labor Certification and have heard about a PERM program. Can you shed some light on what this is?

Answer: Actually, the PERM program is going to be a much faster route for the Labor Certification. However, it is not yet here. But, there has been some guidance from top government officials on the progress of PERM. The Department of Labor expects the regulations to be published before the end of 2004. Afterwards, they expect the regulations to take effect in 60 days. However, they have made contingency plans if the regulations do not get published by the end of 2004.

Normally, a Labor Certification goes to the State Workforce Agency (SWA) first for processing before it goes up to the federal Department of Labor. With the event of PERM, the SWA’s will be taken out of the picture and the Labor Certification will be filed directly with the Department of Labor.

Question: What is the contingency plan if the regulations are not published by the end of 2004?

Answer: In 2005, the SWA’s will send their caseload to newly made centralized federal locations. Thus, the SWA’s can still accept cases (if the regulations are not published), but will not process them. They will only send them to the determined central federal locations for processing at the federal level. The backlog centers are in Philadelphia and Dallas. These centers are made for the sole purpose to reduce the backlog of Labor Certifications around the U.S. These backlog centers are temporary and are expected to be closed within two years. The goal is to get rid of the years of backlog cases by processing them through these backlog centers. As for permanent national centers, these will be located in Atlanta and Chicago and will be operational next year. These centers are expected to handle all future incoming Labor Certification cases.

Question: If the regulations do not go into effect on January 1, 2005, what must I do with my Labor Certification?

Answer: Remember that the SWA is the State Workforce Agency and this is the agency that normally would have done initial processing on the Labor Certification (which many times would last for several years before being sent to the Department of Labor.) The SWA will still accept the case. They will time-stamp the filing, but they will not process the case. They will then send the case to one of the two new regional processing centers in Atlanta or Chicago once they are up and running. As of now, there are basically DOL Labor Certification centers all across the nation. It appears these will all be consolidated into the two national centers mentioned.

In any event, there has already been one major shipment of backlogged cases to the temporary backlog centers and it is expected that the remainder will be shipped before March of 2005. It is certainly a new day for Labor Certifications. Hopefully, the years of waiting will come to a reasonable and happy end.

Filed under: Immigration Law, immigration provisions, Labor Certification, PERM, USCIS | Tagged: Labor Certification, PERM | Leave a comment »