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Labor Certification
In the pursuit of permanent residence in the United States, a common route is that of the labor certificate.
In most employment-based cases this is the first step that must be completed prior to submitting to the Immigration Service an I-140 employer-sponsored petition for an immigrant worker.
To obtain a labor certificate one must prove to the Department of Labor that there are no qualified, available and willing U.S. workers for the position offered to the alien.
This complex process is known as Program Electronic Review Management (PERM).
PERM applications for labor certification are now electronically filed with the U.S. Department of Labor (DOL). This application can be submitted no-less than 30 days after the employer has completed their recruitment efforts. But, NO MORE than 180 days after completion of the recruitment.
The online application is basically a series of ‘yes’ or ‘no’ responses to questions relating to the recruitment process which has taken place. In addition, details of the job title, job description, duties and education/experience requirements are input on the form.
The employer retains all of the documents supporting their recruitment efforts and must be made available if the DOL requests them in an audit. Normally if an attorney is working on the case, a complete ‘report’ is prepared for the employer, to enable them to respond quickly, should there be an audit.
The standards for approval are basically the same as they have been for many years, under the prior ‘traditional’ labor certification and Reduction-in-Recruitment:
Is the prospective employee qualified?
Has the employer attempted to locate U.S. workers that are ready, willing, able and qualified for the position, without success? (This is done by listing the position with the State Workforce agency, a national job bank, print advertisements and a variety of other options listed in the law.)
Is the employer offering a wage which meets the ‘prevailing wage’ levels set by the DOL and the State Workforce Agency?
The DOL occasionally audits PERM application, based on ‘flags’ that they identify in the online application, and also randomly for quality control.
Employers are allowed a limited period of time in which to reply to an audit. Once the response is received, the DOL either issues a ‘certification’ or issues a denial. Employers have the right to appeal a denial to the Board of Alien Labor Certification Appeals (BALCA).
Assuming that the application is certified, the employer then has 180 days in which to file the proper papers with CIS or the approved labor certification is no longer valid.
The Role of an Attorney
his is a lengthy process which can seem impossible; however, it does not need to be painful and laborious.
With the help of a knowledgeable immigration attorney, the process can be significantly simplified (although it will never be easy).
An immigration attorney can substantially reduce the risks involved in this portion of the process by providing strict guidelines for appropriate evaluation of, and communication with, applicants.
You may wonder: Can an immigration attorney guarantee success with a labor certification application?
The answer is: No. There are no guarantees of success. What an immigration attorney can do is make sense out of chaos, thereby substantially increasing your chances of success.
RO:09/95 - CA:08/97 - NZ/KC:8/01 - FC/PW:09/07
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