Labor Certification Applications
These are applications for Labor Certification (PERM) made by an employer which, when approved, permits the employer to file an employment petition (I-140) with Immigration. When this petition is approved, the individual will be able to apply for permanent residence by adjustment of status within the United States or through consular processing at the U.S. Embassy in his or her home country.
The “PERM” can be a very onerous application, is VERY time sensitive, and denials can easily result from failure to complete the application properly or from failure to meet the required deadlines.
It includes the following requirements, among others:
The employer who desires to apply for a labor certification on behalf of an individual must file a completed Department of Labor Application for Permanent Employment Certification form. The employer does not need to file supporting documents with the application. However, they should be available in the event the Department of Labor notifies the employer that its application is to be audited. Then the employer must furnish required supporting documentation prior to a final determination. If an audit is to be conducted, the Certifying Officer will issue an “Audit Letter”. In addition, at the time the petition is filed, AND at the time the application for residence is made, these may be required by the Immigration Service or the Consular officer.
The employer must first obtain a prevailing wage determination from the State labor department covering the area where the position is being offered. He will also need to attest to having conducted most of the following types of recruitment prior to filing the application. These include, but not limited to:
Taking mandatory recruitment steps at least 30 days, but no more than 180 days, before the filing of the application.
Placing a job order with the State’s job placement office’s web site. The start and end dates of the job order on the application shall serve as documentation of this step.
Advertising in newspaper or professional journals
Placing an advertisement 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. This may be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.
Placing advertisement with Job fairs, 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.
Placing advertisement on the employer’s own 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.
Using trade or professional organizations or private employment firms. These can be documented by providing copies of pages of newsletters or trade journals containing advertisements or copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
The employer may also use local and ethnic newspapers with proof as explained above.
If the occupation is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.
Upon approval of the Labor Certification Application, the employer will need to file a petition for alien worker with the Immigration Service. This must be accompanied by the Permanent Labor Certification and all supporting documents.
NOTE: The employer will need to show, at the time the petition is filed, that he has ability to pay the proffered wage at the time of the filing of the petition and also at the time the individual will file for permanent residence (adjustment of status – if in the U.S. or with the United States Consul, if he will be applying overseas.)