Specializing in EB-5 Visas
for permanent U.S. residency for foreign investors
All EB-3 visa processes require a PERM Labor Certification. The EB-3 PERM Labor Certification Process is intended to require employers to prove that they have made a good faith effort at finding qualified and willing U.S. workers before offering a full-time job to a foreign worker with Green Card sponsorship.
The PERM Labor Certification process is completed before the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS, previously INS).
U.S. law requires that U.S. employers complete a four (4) step process for obtaining lawful permanent residence (LPR or “Green Card”) visa status for a foreign worker. The first step is for the employer to request a prevailing wage for the job from the DOL. The second step is for the employer to complete a PERM Foreign Labor Certification application before the DOL. The third step is for the employer to file a Form I-140 Immigrant Petition for Alien Worker with USCIS. The fourth step is for the employee to file a Form I-485 Application for Adjustment of Status with USCIS, or request a visa interview at a U.S. consulate abroad.
The PERM Foreign Labor Certification requires that the employer commit to offering to pay at least the “prevailing wage” for the position at the time that permanent residence is approved. The prevailing wage is an average salary for the job determined by the DOL. The DOL uses wage surveys and other statistical data to ascertain the prevailing wage, using a scale with four (4) tiers that vary depending on the amount of experience, education and skills required for the job. If the employer requires greater experience, education and skills for the job, the DOL will determine a higher prevailing wage.
This is a critical planning point in the EB-3 process that requires an employer to be carefully advised by experienced immigration counsel.
What is PERM?
The PERM (which stands for (Program Electronic Review Management) program is a DOL electronic processing system for Foreign Labor Certifications. Employers are allowed to authorize their attorneys to assist with filing a Foreign Labor Certification. This is completed by having an employer create a sub-account for their attorney.
Foreign Labor Certification
Under a PERM Foreign Labor Certification application, the employer must prove to the DOL that there are no U.S. workers (meaning U.S. citizens and U.S. permanent residents) who are qualified to perform the requirements of the job, and available for the position.
Labor certification is the exception, not the rule. Filing a Foreign Labor Certification does not mean that the Foreign Labor Certification will be approved or that permanent residence will be granted. A Foreign Labor Certification cannot be approved unless DOL determines that there are no qualified U.S. workers available for a particular job.
While the nature of the job market (and the number of U.S. workers available) is a critical factor beyond the employer’s control that will impact the success of a Foreign Labor Certification, careful planning and case strategizing at the beginning is also critical to maximize the likelihood of success of a Foreign Labor Certification application.
Which Form is Used to File a PERM Labor Certification?
Labor Certifications are filed on DOL Form 9089. This form is an attestation-based system, which the employer submits under penalty of perjury.
Minimum Duties and Responsibilities of the Position
Labor Certification requires the employer to set forth the minimum requirements for the position, including any degree required, the specific number of years of experience required (if any), and any necessary training or special requirements.
DOL uses its standard job classifications and its standard education and experience requirements for each job to determine the minimum duties and responsibilities of any job. An accurate description of the duties of the position is essential to preparing a successful Foreign Labor Certification.
Note that the DOL standard requirements may be only two to four years experience for many professional occupations. Where the employer requires a higher level of experience or education, this must be justified by arguing the “business necessity” of the additional requirements. Any business necessity argument will likely subject the application to an audit.
Special Skills or Requirements
The requirement of special skills is a frequent source of problems in the Foreign Labor Certification Process. When employers add special skills to a job, it reduces the pool of eligible U.S. workers – sometimes with excessive results. The DOL is very vigilant to prevent employers from including skills in the minimum requirements that were gained by the beneficiary at the petitioning employer, or creating a long list of special skills that unfairly tailor the minimum requirements to the foreign beneficiary. In addition, special requirements will often increase the prevailing wage determination for the application.
Recruitment under PERM
Under PERM Foreign Labor Certification process, the employer must engage in public and verifiable recruitment for the job that is being offered to the foreign beneficiary. All PERM recruitment requires:
Additionally, for professional positions (those for which a bachelor degree is normally required), the employer must use three additional recruitment methods from the DOL´s list of ten options, which includes job fairs, employer websites and on-campus recruiting.
The employer must review all candidates who apply for the position, and contact all who appear to be qualified. If applicants are qualified, the application cannot be filed.
The recruitment campaign and is another frequent area where problems arise in the PERM process. Employers must maintain accurate and detailed records of all recruitment in order to complete this step. The DOL frequently audits recruitment campaigns and employers must be prepared to provide detailed records to confirm that they complied with all elements of the PERM Process.
After successfully completing the PERM Foreign Labor Certification process, the employer is then authorized to file Form I-140 Immigrant Petition for Alien Worker before USCIS. This process is the actual application to the USCIS for the foreign worker’s visa. USCIS can approve the case or deny the case. Frequently, USCIS may ask questions about whether the employer has the ability to pay the salary offered to the foreign worker at the time that the visa petition was filed. An employer is required to submit copies of tax returns, audited financial statements or annual reports to prove its ability to pay the required wage.
The employee is eligible to file Form I-485 Application for Adjustment of Status if the employer’s Form I-140 has been approved and a visa is available based on the waiting list for visas published by the Department of State in its monthly Visa Bulletin. This is common for new Form I-140 visa petitions being filed in the EB-2 and EB-3 visa categories for citizens of countries such as China, Mexico and India. Sometimes, if a visa category is not subject to waiting list (such as the EB-1 category for citizens of all countries), it is possible for the employer and employee to simultaneously file Form I-140 and Form I-485 for the employee and his or her spouse and unmarried children under age 21.
It is also possible for the foreign worker and his or her family to complete this Step 4 at the US Consulate in their home country. This is referred to as Consular Processing. Consular Processing can only take place after Form I-140 has been approved by USCIS.
This is the final step in the PERM Foreign Labor Certification visa process. Once completed, the employee and his or her family will obtain Lawful Permanent Resident (Green Card) status in the United States.
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