PERM – Labor Certification

The process for obtaining permanent residence based on employment is composed of three phases: (1) the labor certification; (2) the visa petition; and (3) the application for permanent residence. The purpose of this memorandum is to describe the three phases and to provide you with information regarding your part in each of them.

A “labor certification” is a certification by the U.S. Department of Labor that a shortage of qualified U.S. workers exists to fill your job and that you will be paid the “prevailing wage.” One of the most important factors in the ultimate success of a labor certification is a correct determination of the minimum requirements needed to perform the job. Because this factor is so critical, we spend a significant amount of time obtaining and digesting information and then drafting the appropriate paperwork. It is extremely important that we correctly describe the minimum requirements for the job as well as explain the reasons why these requirements are necessary. The necessary papers will be drafted by our office based on information we obtain from your employer regarding title, salary, job description, and minimum job requirements.

In 2005, the Department of Labor drastically changed the way it processes labor certification cases. The primary difference between the new process (referred to as “PERM”) and the old process is how recruitment-related documentation is handled. Previously, supporting documentation such as newspaper ads and other recruitment efforts, justification of the job requirements, prevailing wage determinations, etc., were submitted when the labor certification application was filed. Under PERM, while the same documentation must be prepared or assembled, it is kept by the employer and only submitted if and when requested by the Department of Labor. The employer is required to retain this documentation for a period of five years.

Under the previous regulations, there were two types of labor certifications: Reduction in Recruitment (RIR) (also known as “fast-track,” since these types of cases were given priority handling), and traditional or non–Reduction in Recruitment (non–RIR) cases. These two classifications have been done away with. However, occupations are now classified as “professional” or “nonprofessional” and each classification has different recruitment requirements. Both classifications require two Sunday newspaper ads and a 30-day job posting with the State Workforce Agency (SWA). For professional positions, the employer must comply with at least three out of 10 listed steps: (1) Job fairs; (2) Employer’s website; (3) Job search website other than the employer’s; (4) On-campus recruiting; (5) Trade or professional organizations; (6) Private employment firms; (7) Employee referral program with incentives; (8) Campus placement offices; (9) Local and ethnic newspapers; and (10) Radio or television advertisements. If the occupation is classified as “professional” as a “profession” and the employer fails to do these additional steps, the labor certification application will be denied.

Please note: Because the labor certification is really an application by the employer, our office will need your employer’s permission to act as attorney of record on its behalf before the Department of Labor. However, we will not make any representation on behalf of the company without first clearing it with them. Second, applying for a labor certification does not bind the employer legally. The employer remains free to dismiss you or take other personnel action with regard to you, as it would with regard to any other employee. Finally, the labor certification application may be withdrawn by the employer at any time.

Conversely, the application does not bind you to the employer either. However, it is important, before expending great amounts of time and effort that you are sure that there is relative job stability and that you will be employed by the employer upon completion of “green card” processing.

Upon receiving an approved labor certification, our office prepares a visa petition that is submitted to U.S. Citizenship and Immigration Services (USCIS). The purpose of the visa petition is to prove to the Immigration Service that: (1) your job has been certified by the Department of Labor; (2) you meet all of the requirements listed on the labor certification; and (3) your employer has sufficient resources to pay your salary. This step will also establish the immigrant preference classification. The most common are “second preference” (normally a person with at least a master’s level education) or “third preference” (a person with less than a master’s level education) immigrant. In some cases, the preference for which you qualify may determine how long it will take to obtain legal permanent residence status. At times, it takes a person with a third preference approval longer to immigrate than a person with a second preference approval.

During the visa petition phase, it will be necessary to submit documentation from the employer demonstrating its ability to pay your salary. This will usually be a federal tax return, or for larger companies, a letter or annual report. In addition, it is at this step that we will be submitting documentation regarding proof of your education and experience. Therefore, at that time, we will need diplomas, transcripts, and letters from previous employers, as necessary. Normally, we request those items early in the labor certification process. Any letters that you will need for obtaining information from previous employers will be drafted by our office and forwarded to you for you to send for the necessary signatures.

This step is normally much easier than the labor certification. Assuming that the labor certification has been approved and that we have the necessary documentation, there should be no problems at this stage. On occasion, we may disagree with the Immigration Service as to whether a person should be classified as second preference or third preference. However, if that issue arises, we will give you a complete briefing of any possible ramifications.

By the time we file the visa petition, we must decide whether you will apply for permanent residence here in the United States or at an American consulate abroad. Normally, the application for permanent residence will be processed here in the United States. There are, however, reasons that may dictate processing through an American consulate in your home country such as the need for frequent travel abroad, local USCIS time delays, ineligibility for processing in the United States.

The last phase in the process is applying for permanent residence. Again, we will assist in preparing all the forms and ensuring that the supporting documentation is complete. If permanent residence is applied for in the United States, it is called “adjustment of status” processing. If applied for outside the United States, it is called applying for an immigrant visa.” The result of either is the same: permanent residence.

Whether you apply for permanent residence at home or abroad, you will want to begin obtaining the following documents, if you do not already have them in your possession.

1. Birth certificate for you and any family members;
2. A marriage certificate, if you are married;
3. Divorce decrees or other proof of the termination of any prior marriages;
4. Current passport(s) valid for at least the next year or two;
5. Police certificates from any country in which you have resided for more than one year after the age of 16 (this is only required if you will be processing through an American consulate outside the United States); and
6. A military certificate if you have served in your country’s military (needed only if you are processing abroad).

If you do not know how to obtain any of these documents, please contact our office. While the labor certification is probably the hardest part of this whole procedure, the paperwork and documentation requirements for permanent residence are also rather involved. We will, of course, assist you in preparing the required material as well as gathering the necessary documentation for filing. At the permanent residence application stage, the Immigration Service (or consular office) will ask whether you have: (1) been a member of the Communist Party, terrorist groups or similar organizations; (2) been arrested or convicted of any crimes; (3) ever received public assistance, or (4) lied to obtain a visa, worked in the United States without permission, or overstayed your legal status, etc. We will go into more detail about these factors later. (Certainly, if any of these apply, be sure to mention them to us as soon as possible.)

In general, employment-based adjustment of status cases are not subject to interviews with the local USCIS District Office. On the other hand, individuals who undergo consular processing of employment-based cases are always required to attend an interview.

We realize this process is very important to you. We want to be available to ensure your success. Accordingly, we will do everything possible to make this lengthy process as easy on you as possible.

For consultation please call: (703) 527-1779