PERM Labor Certification: The first step to apply for your Work Based Green Card
As our local economies continue to integrate into the global economy, the acquisition of critical talent now involves a recruitment campaign that stretches beyond our borders. If you are an employer seeking to sponsor a foreign national for a green card (lawful permanent resident status or LPR), contact us today.
What is PERM?
The Department of Labor’s PERM (Program Electronic Review Management) labor certification process has successfully streamlined labor certification and reduced wait times since its introduction, the rules and procedures have also created a great deal of confusion among employers. The benefits of hiring an attorney and planning well in advance cannot be overstated.
What are the requirements of PERM labor certification?
The basic requirements for PERM labor certification that a business employer must demonstrate include:
A documented lack of available US workers with education level or skills required for the positions available. An element of establishing this fact involves the employer carefully following the DOL’s requirements for advertising job vacancies. Our lawyers routinely advise clients of their obligations and assist them in maintaining compliance.
Willingness on the part of the employer to sponsor qualified foreign workers for permanent employment immigration and to pay them the Employment Development Department’s established prevailing wage for the position. Although employers may submit their own data for prevailing wages, this figure will ultimately be determined by the Prevailing Wage Division of the Department Of Labor. Our office will manage this process.
PERM Labor Certification: Employer Attestations
The Department of Labor (DOL) PERM regulations require that the accuracy of information provided in a Labor Certification application is responsibility of the employer.
The DOL has enhanced the program to eliminate fraud or misuse of the process by imposing strict penalties to employers if violations occur. Before a Labor Certification may be filed, an employer must register with the PERM online application service. Once accomplished, the employer must attest to the accuracy of the information in the application under penalty of perjury; furnishing false information is a Federal offense punishable by a fine or imprisonment up to five years or both. Other penalties may apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents.
An employer must attest that it did not engage in unlawful discrimination or rejected any US workers in violation of other Federal, State, or local laws. In addition, the employer must attest to the following regarding the job opportunity:
- The employee will be paid an amount equal to or greater than the Prevailing Wage on that State
- The wage is not based on commissions or bonuses unless guaranteed and paid on at least a monthly basis
- The employer has the funds available to pay the offered wage
- The employer will be able to place the alien on payroll on or before the proposed start date
- The job opportunity has been and continues to be open to qualified US workers
- Any US workers who applied for the position were rejected for lawful job-related reasons
- The job opportunity is a full-time, permanent position.
PERM Labor Certification: Audits
Because the PERM application is submitted on-line, the ETA 9089 form is submitted by itself to the DOL at the time of filing.
However, the DOL may request a post-filing audit for any reason or at random. If an audit is conducted, the employer is given thirty (30) days to respond to a request for additional documentation.
The employer may be asked to justify the requirements for the position, to document the employer’s business, to provide evidence of ads, a summary of recruitment results, and/or copies of resumes etc. Should the employer fail to submit the required documentation within thirty (30) days, or should the documentation be inadequate, or should any material misrepresentation be made, or if any other reason exists to challenge the employer’s information, the Certifying Officer may deny the application.
In addition, the DOL may sanction the employer by ordering supervised recruitment for any future filings for up to two (2) years.
Once an application has been designated for an audit, it cannot be withdrawn. In order to avoid sanctions, the employer must comply with the terms of the audit even if it no longer wishes to employ the foreign national.
Reconsideration and Appeal
The DOL has instituted systems for reconsideration or appeal of a Prevailing Wage determination or of a denial of a PERM application. Approved Labor Certifications can be revoked (with no time limit) by the DOL Certifying Officer if he/she finds the certification was not justified.
The Department of Homeland Security (DHS) or Department of State (DOS) may invalidate an approved Labor Certification for fraud or willful misrepresentation of a material fact.
“Helping you to obtain the right visa, when you need it”
When you contact our firm for an initial consultation, we will take the time to educate and explain the immigration laws, regulations and the visa application procedures for your particular case. As a client, you will receive personal attention and work directly with an experienced attorney who will be able to answer any questions you have and keep you informed and aware of new developments as your case moves forward.
For all of your legal immigration needs, contact the immigration lawyers of Muston & Jack, P.C., at our San Francisco, San Jose or Pasadena California law offices to schedule an initial consultation.