There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition and (3) Adjustment of Status. The PERM Labor Certification process is lengthy and requires careful maneuvering to avoid missteps along the way.
The PERM labor certification is usually the biggest hurdle to clear. So today I want to discuss some helpful tips when working on a PERM application. This list is in no way exhaustive and merely touches the surface of this complicated process. It’s important to understand that the Department of Labor’s (DOL) role in this process is to protect U.S. workers. Keeping this in mind will help you avoid mistakes. Continue reading
UPDATE FROM AILA 01/09/2018
“In a news update on January 8, 2018, the McClatchy DC news service reported
that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a
regulatory change to the H-1B extension rules, as had previously been reported in a December 30,
2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is
not considering changing its interpretation of section 104(c) of the American Competitiveness in
the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year
limit for H-1B workers who have reached certain milestones in the green card process. USCIS
went on to note that “such a change would not likely result in these H-1B holders having to leave
the United States because employers could request extensions in one-year increments under
section 106(a)-(b) of AC21 instead.” USCIS did, however, indicate that the agency is considering
a number of policy and regulatory changes to carry out the President’s Buy American, Hire
American” executive order, including conducting a “thorough review” of employment-based visa
Over the last few days, news has spread regarding potential new regulations that could greatly impact H-1B extensions beyond the 6 year limitation. The word around town is that the Department of Homeland Security (DHS) has discussed the idea to stop H-1B extensions beyond the 6 year limit based on certain language found under the law. Continue reading
One of the prerequisites to filing a PERM Labor Certification is to have a prevailing wage determination issued by the Department of Labor’s National Prevailing Wage Center (NPWC). The prevailing wage is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Among other things, the wage rate is based on the position title, the position description and minimum requirements, and the area of intended employment.
Upon submission of a prevailing wage application, we provide a Standard Occupational Classification (SOC) for the PERM position – the best match wins! The NPWC takes our “suggestion” into consideration, but they ultimately decide what classification the position falls under. Issues can arise if an improper classification is selected by the NPWC. Not only do job details differ across classifications, but wage amounts can differ considerably as well.
This is especially a problem where the NPWC’s selected classification has a higher corresponding wage than what is normal for the PERM position. The good news is, the NPWC allows employers to request a redetermination of prevailing wage where the underlying determination is incorrect. We recently had this issue arise and succeeded in our redetermination request on behalf of the employer. Continue reading
Pay raises in the middle of the PERM process can be tricky. What do you do if you’ve issued a pay raise to the PERM beneficiary between recruitment and filing the PERM application? Continue reading
As part of the PERM Labor Certification process, an employer must obtain a Prevailing Wage Determination (PWD) from the Department of Labor (DOL). The DOL issues a PWD based on the specific position, the requirements for the position, and the area of employment. An employer must, at a minimum, pay a foreign worker the prevailing wage for that position.
We have noticed a gradual increase in PWD processing times. Currently processing times have increased to almost 4 months. This can cause a significant delay in processing the PERM labor certification application. Here’s why: Continue reading
In order to sponsor a foreign worker for a green card, an employer must usually submit an Application for Permanent Employment Certification (ETA Form 9089) to the Department of Labor (DOL). Once an application is approved, or “certified”, the DOL Certifying Officer (CO) who reviewed the case will issue an original labor certification on blue paper and mail this document to the employer or attorney of record. The labor certification will be valid for 180 calendar days and will need to be submitted with the I-140 Immigrant Petition during the 2nd step of the employment based green card process. An initial I-140 Petition cannot be submitted to the United States Citizenship and Immigration Services (USCIS) once the labor certification has expired.
But what if the original labor certification was never received by the employer and is no longer valid? Where there is no evidence that it was delivered, will the DOL then reissue a labor certification with new validity dates to allow an employer to timely file an I-140 Petition? This issue was discussed in a recent Board of Alien Labor Certification Appeals decision, Gazebo Contracting Inc., 2012-PER-02679 (BALCA August 12, 2016). Continue reading
During the PERM recruitment process, an employer may advertise for a position that requires certain experience that is considered typical for the position. Such experience must be limited to actual minimum requirements necessary to perform the PERM position. This creates difficulty in establishing the employer’s actual minimum requirements because “actual minimum requirements” is a term of art not specifically defined by the Department of Labor (DOL).
The Department of Labor (DOL) released 3rd Quarter PERM statistics for Fiscal Year (FY) 2016, and it looks like filed PERM Labor applications continue to rise and India continues to top the list of PERM Labor applications certified so far this year.
Review of Applications Certified in FY 2016 to Date (October 01, 2015 to June 30, 2016): Continue reading
Question C.9 on the PERM application states, “Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the [foreign worker]?”
It seems like such an easy question, but if the employer indicates on the Application for Permanent Employment Certification, ETA Form 9089 (PERM application) that a familial relationship exists, you should expect an audit from the Department of Labor (DOL). Under these circumstances, the DOL usually initiates an audit to ensure no undue influence exists in an offer of permanent employment to the foreign worker. While an audit does not mean that the PERM application will be denied, you will want to be prepared with supporting documentation. Continue reading
My colleague, Paloma Feghali, and I would like to discuss PERM processing during this time of year, where submission of prevailing wage applications will result in a 90 day validity period of the wage determination. If you do not plan carefully, you are looking at a smaller window of time to submit PERM applications. Continue reading