[PERM] Frequently Asked Question (PERM 자주하는 질문)

Frequently Asked Questions: PERM Labor Certification

자주하는 질문: PERM 노동 증명서

Q: What is a PERM labor certification?

질문: PERM 노동 증명서가 무엇인가요?

A: The PERM labor certification (PERM) is the procedure for applying for labor certification. The PERM process was developed by the DOL to streamline the filing and processing of labor certifications for foreign workers. It went into effect on March 28, 2005. All labor certifications filed after March 28, 2005 must be filed using the PERM regulations. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. worker (U.S. citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM labor certification. When filing the application, the employer or its attorney submits application form ETA 9089 either through the Internet or via mail. The main distinctions between PERM and the previous labor certification process is that under PERM: (1) PERM applications can be submitted online; (2) most cases will be adjudicated within 3 months; (3) the recruitment requirements are enhanced and standardized; and (4) no supporting documents are submitted at the time of filing (however, the supporting documents are required to be filed if the application is chosen for auditing).

답변: PERM은 노동 승인을 신청하기 위한 절차를 말합니다. PERM은 미국 노동청에 의해 유동적으로 외국인 대상의 노동승인 절차를 진행하기 위해 만들어졌습니다. 효력은 2005년 3월 28일부터 시작되었습니다. 2005년 3월 28일 이후의 모든 노동승인을 위한 Case는 PERM 절차를 통해 진행해야 합니다. 간단히 말해서, PERM 절차는 청원하는 고용주가 직업 시장을 조사하기 위한 연달은 신규채용 과정을 직접 진행한 후,  외국인 노동승인을 신청해야 합니다. 그리하여 채용 과정을 통해 US 노동자(US 시민권자, US 영주권자)가 자격이 되지 않거나, 지원하는 경우가 없을 때, 고용주는 PERM 노동 승인서를 제출할 자격이 됩니다. 지원서를 작성할 때, 고용주 혹은 담당 변호사가 온라인이나 우편을 통해 지원서(ETA 9089)를 신청합니다. PERM과 기존 노동 승인 절차의 가장 큰 차이점은 아래와 같습니다.

(1). 신청은 온라인을 통해 할 수 있습니다.

(2). 대부분의 case는 3개월 안에 승인되었는지 아닌지 결정됩니다.

(3). 신규채용절차가 보강되고 표준화되었습니다.

(4). 신청 시, 보충 서류를 제출하지 않습니다.

(단, Audit이 될 경우 보충 서류를 요구합니다.)

 

Q: What does PERM stand for?

질문: PERM은 무슨 말의 약자인가요?

A: PERM stands for “Program Electronic Review Management process”. PERM is an entirely new process for labor certification applications.

답변: PERM은 “Program Electronic Review Management process”의 약자압니다. PERM은 노동 승인 신청을 위한 완전히 새로워진 절차입니다.

  

 

Q: Which government agencies are involved in PERM labor certification?

질문: 어떤 정부기관이 PERM 노동 승인 절차과 관련있습니까?

A: The U.S. Department of Labor (DOL) is involved in the PERM labor certification application. Individual State Wage Agencies (SWA) no longer play any role in PERM labor certification process. The USCIS is not involved in the PERM process.

답변: US 노동청 (DOL)이 PERM 노동 승인 절차과 연관된 기관입니다. 개별 주 임금 기관(SWA)은 더이상 PERM 노동 승인 절차와 아무 연관이 없습니다.  미국 이민국(USCIS) 역시 PERM 노동 승인 절차와 연관되어 있지 않습니다.

 

Q: Which government agency determines the Prevailing Wage in the PERM labor certification process?

질문: 어떤 정부 기관이 PERM 노동 승인 절차 중  the Prevailing Wage를 확정합니까?

A: Effective January 4, 2010, the Prevailing Wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). The SWA will no longer be involved in determining the Prevailing Wage for PERM labor certification petitions.

답변: 2010년 1월 4일부터, the National Prevailing Wage and Helpdesk Center (NPWC)에서 일반 직종별 임금(the Prevailing Wage)를 확정합니다. 개별 주 임금 기관(SWA)은 PERM 노동 승인 청원을 위한 일반 직종별 임금(the Prevailing Wage)에 더 이상 개입하지 않습니다.

 

 

Q: What does the Department of Labor (DOL) do in the labor certification process?

질문: 미국노동청(DOL)은 노동승인 과정에서 무엇을 하나요?

A: The DOL, through its two national processing centers (NPC) in Atlanta and Chicago, and one National Prevailing Wage and Helpdesk Center (NPWC) in Washington DC, adjudicates PERM labor certification applications for the whole nation. State agencies no longer participate in adjudicating labor certification.

답변: 노동청은, 아틀란타와 시카고에 있는 두 개의 국제 절차 센터(NPC)와 워싱턴 DC에 있는 국제적 직종별 임금 업무 지원 센터(NPWC)를 통해, 미주 전체의 PERM 노동 승인 지원을 판단하는 역할을 합니다. 주 기관들은 더 이상 노동 승인 절차에 개입하지 않습니다.

 

 

Q: What is USCIS?

질문: USCIS는 무엇인가요?

A: USCIS stands for United States Citizenship and Immigration Services. It is the agency of the U.S. government principally responsible for matters dealing with aliens in the United States. Such responsibility includes jurisdiction over immigrant petitions, such as those requiring a labor certification, although the labor certification process itself is still presided over by the U.S. Department of Labor (DOL). Prior to March of 2003, the USCIS was called the Immigration and Naturalization Service (INS). For a brief period it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. Now, we use the currently accepted name of U.S. Citizenship and Immigration Services or USCIS.

 답변: USCIS는 United State Citizenship and Immigration Services의 약자입니다. 이는 미정부의 기관으로 주로 US에 있는 외국인 관련 부분을 담당하고 있습니다. 비록 US 노동청(DOL)에서 노동 승인을 스스로 주도하지만, 예를 들어 노동승인서 신청하는 과정 등, USCIS는 이민 청원자들의 대한 관할권에 대한 책임을 가지고 있습니다. 2003년 4월 이전에 USCIS는 Immigration and Naturalization Service (INS)로 불렸습니다. 잠깐동안, 이는 Bureau of Citizenship and Immigration Services (BCIS)로 알려지기도 했습니다. 간단히 CIS라고도 했습니다. 현재는 U.S. Citizenship and Immigration Services or USCIS로 인정되어 있습니다.

 

Q: What is the purpose of labor certification?

질문: 노동승인서의 목적은 무엇인가요?

A: The purpose of the labor certification process is to protect the employment prospects and working conditions of U.S. workers. To obtain a labor certificate, one must prove to the DOL that there are no qualified, available and willing U.S. workers for the position offered to the alien. Specifically, the labor certification process requires the employer to test the local labor market to determine whether there is a qualified U.S. worker (permanent resident or U.S. citizen) available to fill the proposed position. Only when the employer shows that it cannot find a qualified and willing U.S. worker to take the position offered, may the employer file a PERM labor certification for an alien beneficiary who is qualified for the position.

답변: 노동 승인 절차의 목적은 US 노동자들의 고용 가능성과 일자리 환경을 보호하기 위함입니다. 노동 승인을 취득하기 위해서 노동청(DOL)에게 외국인 대상의 신규채용 자리에 US 노동자(시민권자, 영주권자) 중 자격이 되거나, 가능한 사람이 없다는 것을 증명해야만 합니다. 구체적으로 말하자면, 노동승인 과정은 고용주가 지역 노동 시장에서 US 노동자(US 영주권자, US 시민권자)가 해당 직업 자리에 

 

Q: What is a labor certification and who needs it?

질문: 노동승인은 무엇이며 누가 필요로 합니까?

A: A labor certification is a certification by the U.S. Department of Labor that there are not sufficient qualified, willing, available and able workers to fill the position that is being offered to the alien beneficiary. The certification, in turn, allows an employer-petitioner to file an EB-2 or EB-3 employment-based immigrant petition on behalf of the foreign national employee. It is the first step in most EB-2 and EB-3 employment-based immigration cases. EB-1 and EB-5 self-petitioners and beneficiaries, beneficiaries of National Interest Waivers, and those seeking employment in schedule A and sheepherder occupations, are exempt from filing labor certification applications with the DOL prior to filing the I-140 immigrant petition.

답변: 노동 승인은 노동청에서 승인한 증명서입니다.

 

Q: Who is considered a qualified U.S. worker for purposes of a labor certification?

A: For purposes of a labor certification, a U.S. worker is defined as a U.S. permanent resident, a U.S. citizen, or other specially authorized alien (such as asylees or refugees) who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the labor certification application.

 

 

Q: Who is the petitioner of the PERM labor certification?

질문: PERM 노동 승인에서 누가 Petitioner 입니까?

A: A PERM application must be filed by a U.S. employer, not by the foreign national employee. The foreign national employee is only the beneficiary of the application. The employer files the application on the alien’s behalf.

답변: PERM 승인 절차는, 외국 국제 고용인이 아니라, 반드시 US 고용주에 의해 파일철되어야 합니다. 외국 국제 고용인은 이 지원절차 중 혜택자일 뿐입니다. 고용주는 외국인 고용인을 대신하여 지원서를 파일해야 합니다.

 

Q: Is there a difference between electronically submitting the application and sending the application through the mail?

질문: 신청서를 온라인 상으로 제출하는 것과 우편으로 보내는 것의 차이가 있습니까?

A: Yes. Filing the application electronically will ensure that the application arrives at the National Processing Center (NPC) faster, meaning an earlier priority date. If one sends the application through the mail, it will take time for the NPC to receive it, and then a data entry clerk will have to enter the data manually into the electronic system. Once entered into the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. This will increase the time it takes to process the application. If a case is filed by paper, it is more likely that the processing time will takes longer than 2-3 months. However, this does not mean that filling the application electronically is more successful.

답변: 있습니다. 

 

Q: Is the PERM labor certification process complex?

질문: PERM 노동 승인 과정은 복잡한가요?

A: A PERM labor certification application is a very complicated procedure. It requires both substantive legal knowledge and practical experience, and not only the knowledge of the PERM process, but also experience in dealing with the recruitment process, which is regulated by law. We recommend that you consult with an experienced immigration attorney if you are interested in filing a PERM labor certification application.

답변: PERM 노동 승인과정은 많이 복잡합니다. 이는 실질적인 법무적 지식과 실용적인 경험 둘 다를 필요하며, PERM 절차의 지식 뿐만 아니라 법에 맞게 직업군 채용과정을 다루는 경험 역시 필요합니다. PERM 노동 승인 신청에 관해 관심이 있으시다면, 우리는 경험 많은 이민 변호사와 상담해보는 것을 권장드립니다.

 

Q: What does the employer need to do during the preparation and case processing?

질문: 고융주는 case 준비와 과정 동안에 무엇을 해야할 필요가 있습니까?

A: Although the attorney will do most of the paperwork, the employer’s cooperation is necessary, as the DOL requires some steps be handled exclusively by the employer. In detail, the employer will need to perform the following:

• Provide relevant information and documents about the employer and job description;
• Review and approve the job descriptions and qualification requirements prepared by the attorney;
• Register on the PERM online filing system, if filing online;
• Review and approve recruitment advertising and posting schedules prepared by the attorney;
• Designate an officer to review and conduct telephone interviews or in-person interviews, if necessary, and to make determinations as to each applicant;
• Review the recruitment reports prepared by the attorney and sign the recruitment report.

Q: How long does the PERM labor certification take from the start to approval?

A: Usually, most PERM cases take around 6-10 months from the start to approval. The recruitment process, including designing the job description, obtaining a prevailing wage determination, interviewing applicants and completing the recruitment report, takes around 3 months. From that point, the DOL review and adjudication process takes around 3-7 months depending on the number of pending cases at its processing centers.

 

 

Q: How long is an approved labor certification valid?

A: An approved labor certification is valid for 180 days following approval. The USCIS will reject any I-140 filings made by employers after the labor certifications have "expired."

 

 

Q: How much does a PERM labor certification application cost? Who should pay for it?

A: There are two major costs involved in a PERM labor certification application: advertisement fees and attorney’s fees. The cost of advertising for the available job position can vary from several hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisement must be placed. Please visit our attorney’s fees page for the most updated information on attorney’s and filing fees.

Effective July 16, 2007, employers must pay all of the costs for preparing, filing and obtaining a labor certification, including recruitment and attorney’s fees.

 

 

Q: How much is the DOL filing fee for a PERM labor certification application?

A: No DOL filing fee is required for a PERM labor certification application.

 

 

Q: I filed a PERM application and realized that I made a mistake. Can I go back and correct this mistake?

A: No, once the application is submitted, it is considered final and no changes can be made. The only remedy for a mistake is to withdraw the application and submit a new one. For this reason, we recommend that you retain the services of experienced attorneys, like those at Zhang & Associates. When you retain Zhang & Associates, an individual attorney will prepare your case, and then one of our most experienced attorneys will second check it before filing, ensuring your application is accurate and complete.

 

 

Q: Can a Company apply for a PERM labor certification on behalf of a person who is not currently an employee?

A: Yes. A labor certification application addresses prospective employment. You are not required to work for the employer until you obtain your green card approval. You do not need to work for the company-petitioner while the company is still petitioning for you.

Example:
Joe has a labor certification application filed on his behalf by Company A while he is working for Company B, which is sponsoring his H1-B visa. Joe is not required to start working for Company A until his adjustment of status application (I-485) is approved (An I-485 is one kind of green card application). Until that point, he may work for Company B.

Example:
Company C files a labor certification application on behalf of Stephanie who is currently living in Paris and not an employee. This is permissible, because Stephanie is not required to work for Company C until she receives an immigrant visa through consular processing and comes to the U.S. It does not matter whether Stephanie is living in the U.S., or whether she is an employee for Company C, before then.

 

 

Q: What is the difference between a labor certification and a work permit?

A: A work permit or Employment Authorization Document (EAD) is a document that the USCIS issues to aliens stating that they are eligible to work on a temporary basis within the U.S. In contrast, a labor certification DOES NOT give the alien authorization to work within the U.S. Rather, it deals with future employment. Instead, a labor certification is the first step that allows the employer to file an immigration petition on the alien’s behalf.

 

 

Q: Who can obtain a Green Card without an approved labor certification?

A: Family-based immigration cases DO NOT require labor certifications. In addition, aliens who qualify as any of the following do not need a labor certification for their Green Card application: Aliens with Extraordinary Ability, Outstanding Researchers or Professors, Multinational Corporation executives or managerial transferees, National Interest Waiver candidates, Immigrant Investors, Religious Workers, or some pre-certified occupations (such as registered nurses).

 

 

Q: Does an approved labor certification allow me the legal right to work within the U.S.?

A: No. An approved labor certification only allows your employer to file an EB-2 or EB-3 category immigration petition on your behalf.

 

 

Q: Does an approved PERM labor certification provide me legal status within the U. S.?

A: No. It will, however, often provide the foundation for a later filing that can afford you legal status in the U.S. as a lawful permanent resident (green card holder).

 

 

Q: What type of job position qualifies for a PERM labor certification application?

A: Any position may qualify, so long as the employer attests (and demonstrates through active recruiting) that there is a shortage of qualified and willing U.S. workers.

 

 

Q: I have a part-time job and my employer agrees to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?

A: No. The job offer must be for a permanent and full-time position. Part-time positions do not qualify. Please noted, however, that the permanent and full-time requirements are for the future position when permanent residency is granted. You are not required to work full time at the time the labor certification petition is filed.

 

 

Q: My employer is a start-up company that currently is operating without a profit. Is my employer eligible to file a labor certification application on my behalf?

A: Yes, it is possible. A profitable company is not a requirement for filing a labor certification application. However, the petitioning company is required to show its ability to pay the proffered wage from the date of filing until the alien receives his or her green card.

 

 

Q: What are the employer requirements for a PERM labor certification application?

A: The employer must attest to the following:

• This is a bona fide (good faith) job offer; and
• The job offer meets prevailing job wage minimum requirements; and
• The offered working conditions and environment do not adversely affect those of U.S. workers; and
• There is no qualified U.S. worker available to fill the position.

Example:
Lawrence decides to form his own company, Company Z, in order to obtain a green card based on an employer-sponsored immigrant petition. Lawrence’s company, Company Z, files a PERM labor certification application on his behalf. The labor certification application will most likely be denied because the Department of Labor will not view this as a a bona fide or good faith job offer; instead, the job was created solely to accommodate the alien employee.

Example: 
Susan’s employer, Company D, files a PERM labor certification application on her behalf. Her current salary does not meet minimum Prevailing Wage requirements. This does not affect Company D’s eligibility to file the application, because Susan’s current salary does not need to meet Prevailing Wage minimum requirements. Company D is only required to pay the Prevailing Wage beginning with the time Susan’s adjustment of status application (for a green card) is approved. Again, the labor certification is based on a prospective job offer. However, Company D must show its ability to pay the proffered wage throughout the whole process.

 

 

Q: Must I work for my employer during the labor certification process?

A: No. You do NOT need to work for your employer during the labor certification process. However, if you do not work for the employer during the immigration process, you must work for the employer for a reasonable period of time after you receive the permanent residency.

Alternatively, if you have been working for 180 days after filing your I-485 and after your I-140 is approved, you may change employer and take a similar position and it will not impact your I-485 process. Note that whether the positions are similar enough is subject to a certain legal standard. We recommend that you consult with experienced attorneys, like those at Z&A, prior to changing jobs in these circumstances. That way, you can make sure that your new position is similar enough to your old one so as not to affect your pending application.

 

 

Q: The company currently hiring me has not made any profit for the past two years. Can the company still apply for a PERM application for me?

A: It depends. One way to prove ability to pay the Prevailing Wage is by demonstrating that the petitioner’s current net assets are equal to or greater than the offered salary from the date of submission of the PERM labor certification application. Or, if you are currently being paid a salary equal to or higher than the prevailing wage, starting with the date of submission of the PERM application, USCIS will most likely find that the employer has met the ability to pay requirement.

 

 

Q: My employer is a sole proprietor and I am in H-1B status working for him. Currently, he is paying me less than the Prevailing Wage set for the labor certification application, but it meets the Prevailing Wage set for the H-1B. Is he required to prove that he has the ability to pay for the Prevailing Wage Determination for the PERM labor certification?

A: Yes. Although an employer is not required to pay the proffered wage until the permanent residency is granted, the employer must have the ability to pay the proffered wage, starting with the date the labor certification application is filed. If he has not paid the Prevailing Wage set for the labor certification, he must produce evidence at time the application is filed to demonstrate his ability to pay the Prevailing Wage.

 

 

Q: When does the employer have to pay the offered salary to the alien employee?

A: Because the PERM LC and immigration visa petition is filed for a prospective job, the latest time the employer has to pay the alien the offered salary (equal or higher than the Prevailing Wage) is when the alien receives permanent residency (the Green Card). However, the employer has to demonstrate the ability to pay the offered salary throughout the whole PERM LC process as well as throughout the I-140/485 process until the alien receives Green Card.

 

 

Q: How does employer to demonstrate the ability to pay the proffered salary?

A: The employer can demonstrate its ability to pay by using either of the following:

• If the alien employee was already employed by the employer, the alien’s actual paid salary is equal to or greater than the proffered salary in the labor certification during the entire process; or,
• If the alien is not employed with the employer throughout the entire process; OR the alien’s salary is lower than the proffered wage in the labor certification application, then the employer must demonstrate:
• The employer’s net assets are in excess of the proffered salary in the labor certification petition; or,
• The employer’s net profit is in excess of the proffered salary in the labor certification petition.
•  

Q: What if the company fails to prove its ability to pay the prevailing wage?

A: Failure to produce evidence of ability to pay the Prevailing Wage at time the labor certification application is filed may result in a denial of the later filed immigration petition. Usually, in the labor certification processing, the Department of Labor usually does not check the ability to pay issue. However, during the I-140 processing, the USCIS confirms ability to pay carefully, back tracking to the date the labor certification application was filed. Also, the burden of proof rests solely on the petitioner, so the employer must be prepared with evidence.

 

 

Q: What is the Prevailing Wage in a PERM labor certification?

A: The Prevailing Wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment.

 

 

Q: Which government agency determines the Prevailing Wage in the PERM labor certification process?

A: Effective January 4, 2010, the Prevailing Wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). The SWA will no longer be involved in determining the Prevailing Wage for PERM applications.

 

 

Q: How can I obtain a Prevailing Wage?

A: Effective January 4, 2010, the Prevailing Wage rate is usually obtained by submitting ETA Form 9141 to the National Prevailing Wage and Helpdesk Center (NPWHC) in Washington D.C., or, in limited circumstances, by accessing other alternative legitimate wage survey data. The NPWHC generally relies on the most common wage survey, which is also known as Occupational Employment Statistics (OES) Survey.

Prevailing Wage requests submitted to the NPWHC should include the job title, job description, area of intended employment, and the requirements for the job (i.e., education level, years of experience, and any other special requirements). NPWHC responds with the wage for those similarly employed in the same geographic area, and indicates the wage survey used to determine the wage. It also provides the wage level.

 

 

Q: How long is a Prevailing Wage Determination (PWD) valid?

A: The National Prevailing Wage and Helpdesk Center (NPWHC) has specified the limited validity period of the Prevailing Wage, and it is always not less than 90 days or more than 1 year from the determination date. Labor certification applications must be filed while the Prevailing Wage determination is still valid.

 

 

Q: What happens if the NPWHC determines a prevailing wage higher than what the employer is willing to pay?

A: If the wage issued by NPWHC is higher than what the employer is willing to pay, it is possible to look at alternative classifications, where the average wage is lower. DOL policy on combination of occupations cases is to assign the highest Prevailing Wage that applies.

Alternatively, the employer can file a report from another wage data source with a request that it be used instead of the PWD with the labor certification application. The DOL is not bound by this. If the DOL denies the request, the employer has a right to appeal to the Board of Alien Labor Certification Appeals (BALCA). The requests for PWD review by the BALCA must be in writing and must be made no more than 30 days after determination.

The employer can alternatively file a new PWD request with the NPWHC and use the new PWD instead.

 

 

Q: What will happen if my employer does not promise to pay the Prevailing Wage?

A: Communicate to your employer that this promise is legally binding and must be honored when you obtain your green card.

 

 

Q: What is the minimum salary requirement for the labor certification application?

A: It depends. Each job position has a different Prevailing Wage rate depending on the location of the job position.

 

 

Q: What are the mandatory advertisement requirements for PERM labor certification?

A: PERM regulations require at least two Sunday postings in a newspaper of general (commonly read) circulation, plus one 30-day job order with the State Workforce Agency. Alternatively, regulations allow the employer, during recruitment for a professional position that requires experience and an advanced degree, and a professional would normally be the person to fill the position, to advertise in one Sunday edition of a newspaper of general circulation AND one print professional journal related to the profession, instead of two separate Sunday postings.

The newspaper must be one that is most likely to attract applicants. If a newspaper of general circulation in a rural area does not have a Sunday edition and the job is to be performed in that rural area, then the day of the week that has the widest newspaper circulation may be substituted for Sunday. For example, in a rural area where a job is to be performed, the newspaper only publishes on Monday and Wednesday. More people buy the Monday edition of the newspaper than the Wednesday edition. The employer would advertise the job in two separate Monday editions of the newspaper.

 

 

Q: How long is the PERM recruitment period?

A: There is no mandatory set length of time the recruitment period should last, so long as the recruitment activities meet the substantive requirements. According to the regulations, recruitment activities must be concluded at least 30 days prior to filing, and must have begun no earlier than 180 days prior to filing. One of the three additional steps required for recruitment for professional occupations may take place within 30 days prior to the submission of the PERM application. However, none of the recruitment activities may take place more than 180 days prior to filing the application. Technically, an employer may complete all recruitment activities within 30 days. This is because the job order has a mandatory 30-day posting period. All other recruitment activities may be conducted concurrently during this time. If recruitment then takes only 30 days, the employer need only wait another 30 days to submit the application, for a total of 60 days from first recruitment activity to filing.

 

 

Q: What information should be included in the job advertisement?

A: The newspaper advertisements for both professional and nonprofessional occupations must include the exact job description and minimum job requirements, as it appears in the ETA Form 9089. It must also include the name of the employer, and indicate that applicants should submit resumes to the employer and provide an address, a general description of the job, description of the geographic area where the job is to be performed, not include any job requirements other than those listed on ETA Form 9089, and cannot contain wages or terms that are less favorable than those offered to the alien.

 

 

Q: Do I need to include the wage rate in the advertisement?

A: No, the wage that will be paid to the employee does not need to be included. If it is included, if cannot be lower than the Prevailing Wage rate.

 

 

Q: How important are the job description and minimum job requirements to the labor certification process?

A: The job description and minimum job requirements are key issues in the labor certification process. A carefully drafted job description and requirements determine the pool of potential job applicants responding to the job advertisement. In addition, it determines whether the position will meet the technical requirements for a successful PERM application.

However, unreasonable minimum job requirements or requirements that are tailored to the specific alien beneficiary’s qualifications are not allowed and will likely prompt an audit by the Certifying Officer (CO).

 

 

Q: Can my employer restrict the job requirements to specifically fit my credentials but make most potential job applicants unqualified?

A: The job requirements cannot be unduly restrictive. In general, a job is not considered unduly restrictive when the job requirements: a) are those normally required for the job in the U.S.; b) are those defined as part of the job in the Dictionary of Occupational Titles; and c) do not contain a language requirement other than English. All three conditions must be fulfilled for a job not to be considered unduly restrictive. This is one of the critical issues in the labor certification application and only a very experienced attorney can make the determination as to whether the conditions are fulfilled.

 

 

Q: Must foreign language skills be totally eliminated from job requirements?

A: No. Although as a general rule, requiring the applicant to speak a language other than English is considered unduly restrictive and will likely trigger an audit, an important exception applies: the business necessity exception. The language requirement will be acceptable if it is considered a business necessity. Business necessity might exist if the position directly requires language performance, such as a Chinese language teacher. Business necessity can be established here: that a Chinese language teacher must speak Chinese in addition to English in order to perform the job.

 

 

Q: What is business necessity?

A: Basically, business necessity means that a job requirement must bear a reasonable relationship to the occupation in the context of the employer’s business, and is essential to fulfilling the reasonable job duties as described by the employer. The DOL has a JobZone code to determine the general required qualifications for the job that is the subject of the application. If the required qualifications in the application exceed the JobZone code, it may trigger the DOL to audit the application and the employer may then be required to demonstrate the business necessity.

 

 

Q: I am working in a small company as a programmer. All of my co-workers speak Mandarin in the workplace. Can my employer require Mandarin Chinese as a business necessity?

A: Probably not. The key point to determine business necessity is whether a requirement is reasonably necessary to perform the job duties. Although it may be convenient to communicate in Mandarin in a workplace where all of your co-workers speak Mandarin, such language is not reasonably necessary to perform your duty as a computer programmer. Of course, business necessity would be more likely established if your job duty is writing Chinese software programs.

 

 

Q: I operate a travel agency and over half of our clients speak Chinese only. Now I need to recruit an agent. Can I require language as business necessity?

A: Maybe. Under this circumstance, you must provide evidence that the foreign language skill is necessary to communicate with clients, customers or contractors. In practice, however, it is hard to challenge this standards.

 

 

Q: Who will draft the advertisement’s contents?

A: If Zhang & Associates, PC is hired to handle the labor certification application, the highly experienced PERM attorney at our firm always prepares the job advertisement to ensure that it meets all requirements.

 

 

Q: What happens once the advertisements are placed?

A: Once the advertisements are placed, if the employer receives resumes, the employer is obligated to contact each applicant who appears to minimally qualify for the position. Applicants may only be disqualified for lawful reasons (such as that he or she does not have the required level of education or the required years of experience).

 

 

Q: How much does it cost to place the job advertisements in newspapers?

A: The costs to place a job advertisement in newspapers varies from a few hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisements are placed. A job posting in a large metropolitan area will generally cost more than a job posting in a rural locale.

 

 

Q: How do I select the newspaper for the job advertisements?

A: The job advertisements need to be placed in a local newspaper where the job is to be performed. The newspaper should be one of general circulation (common and widespread circulation, not specific to any one audience) with substantial amount of subscribers. The attorney will make arrangements for the advertisement with the appropriate media that is accepted by the DOL. If you hire our firm, our firm will arrange the newspaper posting and external posting for you so that it reduces the work of the employer and expedites the process. We make such arrangements though a nationwide media company who has expertise in selecting DOL accepted newspapers and we also receive a discounted rate.

 

 

Q: Does Zhang & Associates handle the placing of the job advertisement for its clients?

A: Yes, our firm makes arrangements to have client advertisements handled through an advertising agent. Generally, an advertising agent can obtain a better price than the rate quoted by newspapers to the general public.

 

 

Q: Do I have to advertise in the Sunday edition?

A: Yes, urban and suburban areas must place their advertisements in the Sunday edition of the newspaper. If rural areas do not have Sunday editions, they are allowed to use the newspaper edition with the widest circulation.

 

 

Q: What is a professional position?

A: In general, a position that requires a minimum of a Bachelor’s degree or higher is considered a professional position. For example, a Software Engineer position that requires a minimum of a Bachelor’s degree will be categorized as a professional position; therefore, the minimum recruitment activities, plus the additional recruitment activities, are required. However, a Chinese cook position that generally requires only two years of experience but no degree is considered to be a non-professional position, and additional recruitment activities other than the minimum mandatory recruitment activities are not required.

 

 

Q: What if the position is for a worker with an advanced degree, do I still have to post in the Sunday edition of the newspaper?

A: Yes. If the position is for a job to be filled by someone with an advanced degree and experience, and is one that would normally be filled by a professional, you must still place an advertisement in at least ONE Sunday edition of a newspaper of general circulation, but you may choose to place the second advertisement in a professional journal.

 

 

Q: Are additional recruitment steps required for professional positions?

A: Yes. For professional positions, the regulations require that the employer conduct other recruitment activities in addition to the basic mandatory advertisements. For professional positions, the employer must advertise or recruit at or using any three of the following:

• Job fairs;
• Employer’s website;
• Job search website other than employer’s;
• On-campus recruiting;
• Trade or professional organizations;
• Private employment firms;
• An employee referral program, if it includes identifiable incentives;
• A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
• Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
• Radio and television advertisements.

Q: Can placing three advertisements on different websites or three advertisements on television fulfill the additional recruitment steps?

A: No. The advertisements must be placed in three different mediums as specified in the list provided by the regulations shown above. They cannot all be in the same media. If an employer places three postings with the same type of media, say, three job search websites, it will be considered to be only one posting activity, and the employer will still have to satisfy two other criteria.

 

 

Q: Is there a valid period of time for the advertisements and recruitment activities to occur?

A: Yes. All mandatory advertisements, job orders, internal postings, and additional recruitment activities must occur within 180 days of the filing date, but no closer than 30 days prior to the date of the filing. A single exception is allowed: one of the three additional recruitment activities required for professional occupations may occur within 30 days before the date of filing.

 

 

Q: What is a Job Order?

A: A Job Order is an advertisement for a job placed with the State Workforce Agency (SWA). For purposes of PERM, the Job Order must run for a minimum of 30 days and the 30-day job order timeframe must end at least 30 days prior to filing. However, the employer is not limited to the 30-day timeframe, and may choose to post the job order for a longer period.

 

 

Q: What is an Internal Job Posting?

A: It is a job advertisement that is posted internally and conspicuously at the employer’s premises for at least ten (10) business days during the job recruitment campaign to provide notice of the current opening to the company’s employees, and also indicate that a foreign labor certification application may be filed by the employer, and include information for reporting violations to the DOL. The internal job posting must follow a special format and include specific wording, as indicated by law. A Z&A attorney can draft an internal job posting for its clients.

 

 

Q: Does the employer need to provide notice of the filing to a bargaining representative?

A: Yes. If the offered position is a union position, the bargaining representatives of the employees in the same occupational classification for which the application is being filed must be given notice. If there are no bargaining representatives, then an Internal Job Posting must be made.

 

 

Q: Has the PERM labor certification process expanded the Internal Job Posting requirement?

A: Yes. The employer must now publish the internal job posting in any and all in-house media, whether electronic or printed, that is usually used by the employer for posting such a notice for recruitment of similar positions.

 

 

Q: How long does the Notice of Filing have to be posted?

A: The Notice of Filing may be posted indefinitely, but must be posted for at least 10 consecutive business days, and those 10 days must fall between the 30 to 180 day period prior to filing the application.

 

 

Q: What must be included on the Notice of Filing?

A: The Notice of Filing must comply with the DOL requirements and must include the wage offered, and job description, working hours, contact person’s name and address, and other mandatory elements, such as where to report violations of the foreign labor certification process. The DOL has very strict requirements for the internal job postings. Any mistake or error in this posting may result in the denial of the case.

 

 

Q: What is the employer required to do during the job recruitment process?

A: Generally, the employer needs to maintain documentation of all resumes received: both qualified and unqualified, for the recruitment report. The employer should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep records to explain why any applicants were deemed unqualified. Z&A can help review the resumes and provide assistance on how to deal with a particular situation.

 

 

Q: What is the Recruitment Report?

A: The recruitment report is a statement detailing the recruitment activities, applications, interviews, and the decisions concerning all applications. There are several specific required items in the report according to the PERM regulations. Although the report is not required to be submitted with the initial PERM LC application, the PERM regulations require the employer to sign the recruitment report prior to filing the application. Further, the employer should submit the recruitment report and other documents to the DOL within 30 days upon the DOL’s request, in the event the case is selected for auditing.

 

 

Q: How soon can the employer submit a PERM application from the date of first recruitment?

A: Technically, the employer may submit a PERM application 60 days from the date of first recruitment. As explained above, the employer may complete all required recruitment activities in 30 days. There is a 30-day waiting period from the date of completion of the mandatory posting and the two optional postings prior to the submission of the PERM. This period is required so that the employer may screen and interview the potential candidates.

 

 

Q: What will happen if another company merges with the employer-company after my PERM labor certification is approved?

A: If the new company accepts all benefits and liabilities of the employer-company (a successor in interests), the new company may continue your green card process.

 

 

Q: What will happen if I change jobs while my PERM labor certification application is in process or after it has been approved, and while my I-140 immigrant visa petition is pending?

A: Changing jobs will not affect your labor certification process if your sponsoring employer agrees to continue the PERM labor certification petition and immigrant visa petition on your behalf, so long as you are going to return to the sponsoring employer once you obtain your green card or an immigrant visa. However, in the real world, most employers will withdraw or discontinue the immigration process if you leave the company.

 

Example: 
Li works for Company H and Company H files a PERM labor certification application for Li. Li found another attractive position at Company M at a location that is closer to his family. He negotiated with Company H that he is going to continue his green card process and Li will return to work for Company H when his green card is approved. In such a situation, Li may continue his green card process with Company H and his change of employer does not impact the green card process.

 

 

Q: May two or more companies file PERM labor certification applications for one alien worker at the same time?

A: Yes. The labor certification application concerns a job offer by an employer that cannot be filled, so the focus of the process is the employer and the job position.

 

 

Q: Can one company file two PERM labor certification applications for the same employee for two different positions?

A: No. Under the current DOL practice, one employer cannot file two PERM applications for the same alien. Even though it is legally possible that an employer files two labor certification applications for two different positions for the same alien, the current PERM filing system does not allow such a filing.

 

 

Q: Can I file a PERM labor certification while I have a labor certification pending at the Backlog Center?

A: Yes. You may file a new PERM labor certification, even if it is by the same employer and you have a labor certification pending at the backlog center. The PERM filing can be for the same position as your previous case or it can be for a new position. Filing of the PERM labor certification does not impact your previous pending case.

 

 

Q: I have already filed an immigration petition under the NIW, EB-1a or EB-1b categories. Can my employer still file a PERM labor certification application on my behalf?

A: Yes. Your employer may file a PERM labor certification for you even if you are a beneficiary of another pending or approved immigration petition. Filing a PERM is an extra benefit to you.

Example: 
Joon is a beneficiary of a pending family-based immigration petition. Joon may have his prospective employer, Company U, file a labor certification application on his behalf, as well, which may increase his chances for being the beneficiary of an approved petition, which he can later use to file for his green card.

Example: 
Ann filed an employment based immigration petition through a National Interest Waiver (self-petition). Ann’s employer may still file a PERM labor certification application on her behalf as well. This may increase her chances for obtaining a green card.

Example: 
Tony is currently an F-1 student. Tony’s prospective employer, Company W, may file a PERM labor certification on his behalf. In general, the labor certification filing is not considered an expression of immigrant intent, and thus should not affect his F-1 visa status/renewal. However, after an I-140 immigrant petition is filed for him, his F status and renewal may be impacted or denied.

Example: 
Lana’s National Interest Waiver (NIW) and I-140 petition have been approved, but she has recently made a career change. Lana’s Adjustment of Status (I-485) application, based on her NIW and I-140, is still pending. She is worried that her Adjustment of Status may be denied due to the fact that she is in a new line of work. Lana may have her prospective employer, Company ABC, file a PERM application on her behalf. Lana may then apply for her green card through the PERM labor certification process and does not need to worry about the potential denial of her currently pending I-485.

 

 

Q: What happens to my PERM labor certification case if my Employer-Petitioner goes out of business?

A: Your PERM labor certification application will be denied. Even if the DOL approves it without notice of the winding-up of the business, you will not be able to continue the I-140 petition without sponsorship from the company.

 

 

Q: May I leave the U.S. while my PERM labor certification application is pending?

A: You may leave the U.S. while your PERM application is pending. However, filing the PERM labor certification application will not in any way aid in your reentry to the United States. You should secure a visa for reentry and resolve all related issues. Please consult a competent attorney to discuss and resolve all issues that could impact your reentry prior to your departure.

 

 

Q: Will the PERM labor certification application affect my non-immigrant visa application?

A: A submitted or approved labor certification application will most likely NOT impact your non-immigrant visa application. The current non-immigrant visa application form does not require disclosure of the labor certification application. However, if you are the beneficiary of a pending or approved I-140 immigrant petition, which is usually filed after receiving a PERM approval, your I-140 will impact your eligibility to secure a non-immigrant visa, except for the L and H nonimmigrant visa categories.

 

 

Q: My spouse’s employer has filed a PERM labor certification application on his behalf. Should I still ask my employer file a PERM labor certification application on my behalf, as well?

A: Yes. Filing two labor certification applications may increase your chances of approval, and also potentially the speed with which you obtain a green card.

 

 

Q: Can I withdraw an application if it is selected to be audited?

A: No. If the application is selected for an audit, the employer cannot withdraw the application and must face any consequences of the audit.

 

 

Q: My labor certification has been approved. What factors may prevent me from obtaining a Green Card?

A: If your labor certification has been approved, you are well on your way to obtaining a green card. Potential risk factors may include your company’s inability to pay and a criminal record if any.

 

 

Q: What is the difference between EB-2 and EB-3?

A: EB-2 refers to the 2nd preference of employment-based immigration petitions. A position that requires a minimum of a master’s degree or a bachelor’s degree plus five years of experience may qualify for an EB-2 category. A position that requires at minimum a bachelor’s degree or two years of experience falls in the EB-3 category. In the adjustment of status or consular processing, EB-2 and EB-3 visa availability may be different. As of June 2006, EB-3 has around a five-year backlog of visa availability while EB-2 visas are currently available for all areas except Mainland China and India.

 

 

Q: What is the visa availability?

A: In the U.S. employment-based immigration petition system, each immigrant category has a certain quota of visas for each country on an annual basis. If a visa number in one category for a certain country has been used up, aliens born in that country may have to wait for visa availability. Please visit our Visa Bulletin for most updated visa information.

 

 

Q: How do I estimate the waiting period for a visa quota?

A: The time between your priority date and the cut-off date issued by the Department of State is generally the period of time that you have to wait before you are able to file adjustment of status or consular processing.

 

 

Q: What is my priority date?

A: When filing a labor certification application, your priority date is the date when the PERM application is received by the DOL.

 

 

Q: What is the cut-off date?

A: The cut-off date is a date issued by the Department of State each month in accordance with visa availability. Applications with priority dates that fall before the cut-off date should have immigrant visas available to them that they can apply for.

Example:
Mr. Wang is Chinese and is also a beneficiary of a PERM labor certification application that was filed in March 28, 2006. The position requires a bachelor’s degree, and so his category is EB-3. So, Mr. Wang’s priority date is March 28, 2006, the day the PERM application was filed online and received by the DOL. Let’s assume that the PERM application was approved on May 28, 2006. In May, the DOL published cut-off date that shows that the EB-3 category for a Chinese born alien is 01/01/2001. Therefore, Mr. Wang will not able to filehis I-485 application yet because his priority date is after the cut-off date. However, his employer may still file the I-140 for him. Mr. Wang cannot file his I-485 application for a green card until the DOS publishes cut-off date that falls after March 28, 2006.

 

 

Q: If I retain with an attorney for the PERM application, what will the attorneys do?

A: Usually the attorney will do most of the work, including the following:

• Attorney will collect relevant information and documents about the sponsoring employer and the alien beneficiary;
• Attorney will review and analyze your qualifications and your (potential) job requirements including issues relating to your degree, the job duties, etc. If a foreign degree evaluation or foreign educational equivalent is required, we will advise the client accordingly;
• Attorney will draft the job description and design the qualifications based on the information provided by the employer and the alien beneficiary;
• Attorney will discuss the job descriptions and qualification requirements with the alien-beneficiary;
• Attorney will work with the employer to revise and finalize the job descriptions and qualification requirements;
• Attorney will help the employer to register on the PERM online filing system;
• Attorney will submit the necessary information to obtain a Prevailing Wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC);
• Attorney will advise the employer on legal procedures applicable to the job recruitment process according to the DOL’s rules and guidelines;
• Attorney will draft a job posting and propose advertising and posting schedules for the employer’s review and approval;
• Attorney will arrange newspaper advertisements, job orders (if state allows), and all external postings upon receiving the employer’s and alien’s consent as to the content of the advertisement and posting;
• Attorney will arrange the job posting via an advertisement agent;
• Attorney will work with the employer on arranging other applicable recruitment activities. For example, if the job opening is to be posted on the employer’s website, the attorney will prepare the content and give it to the employer for posting. The attorney can also refer a recruiting firm to the employer for recruitment purposes. Recruiting through a recruiting firm is one of the qualified additional recruitment activities;
• Attorney will offer legal guidelines to the employer on screening and interviewing applicants;
• Attorney will co-ordinate the recruitment with the employer, work with the employer on analyzing the job applications that are received, and provide a professional opinion on responding to those inquires;
• Attorney will offer convenient forms for the employer to use to document the entire recruitment process and will also prepare an entire set of documents that are ready for auditing in the case of an audit;
• Attorney will review all the recruitment information collected from the employer and draft the recruitment report on behalf of the employer;
• Attorney will prepare the online PERM application form and provide a copy to the employer and the alien beneficiary for review before filing;
• Attorney will submit the online PERM petition upon approval from the employer and the beneficiary;
• Attorney will document the entire process and prepare an entire set of documents ready for auditing;
• If the DOL chooses to audit the application, the attorney will work with the employer to respond to any DOL auditing request;
• Attorney will communicate with the DOL afterwards regarding any legal issues and respond to any requests for additional evidence on your case

 

For more information on PERM labor certification, please refer to the following website:

• PERM Labor Certification
• Who needs PERM
• General Procedures for PERM Application
• Requirements of PERM
• Advertisement and Recruitment
• PERM Prevailing Wage determination
• Factors Affecting PERM Success
• Employer’s Financial Ability for a PERM Petition
• Effect of Mergers & Acquisitions
• Priority Date
• PERM Green Card Flow Chart
• Audit Procedures
• Remedies for PERM Denial
• Supervised Recruitment in PERM
• EB-2 vs. EB-3 in the PERM Process
• Frequently Asked Questions about PERM Process
• Services that We Provide
• Attorney’s Fees for PERM
• Articles & News on PERM Labor Certification
• Special Handling PERM for University and College Teachers
• PERM Specialty Team