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Acquiring Permanent Residence through Labor Certification

by Alice M. Yardum-Hunter

What is a labor certification?
In order to obtain permanent residency ("green card"), an individual must either be a relative of a U.S. citizen or permanent resident, own a significant business (half a million or a million dollars), be an intracompany transfer, be in the national interest of the US, have extraordinary ability, or a firm job offer in the U.S. Most aliens who secure permanent residence through their work do so with job offers. When one has a firm job offer, a labor certification is first required in order to obtain legal, permanent residence. The labor certification demonstrates that: a valid job exists; that there are no qualified, able and available U.S. workers to fill the position based on duties and requirements that we delineate; and that the hiring of the foreign worker will not negatively affect the US labor market.

The U.S. Department of Labor (DOL), independent of the Citizenship and Immigration and Services (CIS, legacy INS) grants the labor certification. Upon approval of the labor certification, it is submitted to CIS (and possibly the Department of State, DOS) as the basis for permanent residency.

The application process has dramatically changed as a result of "PERM". This revolutionary process condenses to 90 days the existing six month to two-year process of the first step toward permanent residence. Even better, the goal is to issue labor certifications in 45-60 days. Time frames and recruitment requirements will no longer vary as they do, depending on where the case is filed. The regulations for the first time mandate a decision by the government in 90 days and specify the types of advertising and other recruitment types and amounts. The form can be electronically filed and does not change the substance of existing labor certification work "behind the scenes". If anything, there is more work as the form is much longer, and each question relates to a specific issue of law. But it makes the processing far more consistent and concrete. For the past two and a half years, we have been living with the prospects of a proposed PERM regulation that was far more restrictive than existing case processing systems. The final PERM regulation is more generous than any system, past or proposed. This makes life much clearer for case processing. Not only shortening the processing time, the recruitment time frame before filing is also condensed, and may be completed in as short as two months, compared to the six months under the old Reduction in Recruitment rule.

The electronic form, the Application for Permanent Employment Certification, Form ETA 9089 combines two former forms by including both employer and employee information. The old forms were four pages. The PERM form is 10 pages. The form will not be signed until it is received back from the Department of Labor, before filing with the CIS. In general, the form consists of the details of the employer, the job offer, and minimum requirements for a qualified person to engage in the position (education, experience and any special required knowledge, skills, use of tools, etc.), the recruitment done, prevailing wage information (which is a minimal wage required to be paid for a particular case), and information about the alien personally and his/her qualifications for the position offered.

As mentioned above, the principle object of the labor certification is to ensure that the alien will not displace any U.S. workers. For this reason, the application requires the employer to conduct pre-filing recruitment for the position. No longer will the DOL, after much work and time, be able to say that the recruitment was insufficient, so long as the employer advertises, as rules require. The position will be advertised in two Sunday newspaper ads and a job order will be posted in your state's employment services website. In addition to these two means, other recruitment may be necessary, depending on whether the job is professional or not. Professional jobs will require an addition three types of recruitment such as job fair, on campus recruiting, employer website posting, ad with a trade or professional organization, job search website, employee referral program and local or ethnic newspaper.

When the employer can demonstrate that no U.S. worker is qualified for the position and that the job offered otherwise meets DOL regulations, a labor certification is issued.

A great benefit of PERM allows unskilled jobs which there was viewed as in abundance in the job market to be the subject of labor certification. In the past, certain positions could not be certified at all. Now, all jobs in the U.S. are certifiable.

Applicants for the position offered will learn of the job through the various recruitment means. When apprised of an applicant for the job, the employer must make initial contact with him/her quickly. My advice is that the initial attempted contact should be made within a week of receipt of a resume. The contact may be by phone or if the employer is not able to make contact by phone, by certified mail, for further consideration when the person looks as though he qualifies, or may qualify. An employer cannot assume that a resume includes each and every qualification of a job applicant, and must inquire as to qualifications when the applicant may qualify. If contact with a job applicant is not done timely, the DOL can deny the case. If a person is clearly unqualified on the basis of a resume, the employer may reject such person without attempt to interview because he is clearly not qualified. If a person may be qualified, the employer must interview that person (telephonic interview is acceptable) and give a lawful, job-related reason why the person is not qualified or prove that they took two steps to attempt contact.

We will prepare a questionnaire or spreadsheet for the employer to assess each job applicant, discuss with the employer the strengths and weaknesses of each candidate according to the requirements established by the employer, and prepare the recruitment letter/report. At the end of the recruitment period, the employer will be asked to account for any persons who responded to their recruitment, referred from EDD and from the job posting.

Under current practice, ownership or control in the petitioning employer by the alien makes it difficult to prove that the position is open to a US worker. Small companies have a more difficult time showing that the alien does not control the business to the extent of not controlling the decision that the job remains his/hers, i.e., the likelihood of considering a qualified U.S. worker. This goes to the bona fide intention of the application. Therefore, if there is a choice, an alien should seek try to seek employment with an entity in which s/he does not have ownership or control. This becomes an issue upon audit as the PERM form asks about the size of the employer and whether there is a familial relationship between the employer and the alien. Specific documents, based on case law, must be provided to show there is not overriding ownership or control of the position by the alien in the event of an audit.

How does the labor certification process work?

Instead of three different possible procedures (regular, RIR and Limited Review), all will be replaced by PERM. Upon filing, the soonest date of which is March 28, 2005, certifiable labor certifications will be issued in 90 or less days. If certified, the labor certification will be filed with a petition with the CIS.

The underlying work that the attorney handles will remain relatively the same though possibly more time consuming under PERM, however, PERM simplifies the paperwork that the government receives. The form acts as an attestation rather than filing extensive proof of fulfilling the requirements. Instead, the documentation will be maintained at the employer's place of business, ready in the event of an audit. The regulation will be enforced by audit. Approximately 20% of cases are anticipated to be audited for cause and at random. If a case is audited, a response must be submitted in 30 days. The recruitment report, evidence of the recruitment methods, resumes of job applicants, criteria for rejecting US workers, information about the employer's business, the need for any special requirements that require justification, and the like, submitted under current rules will have to be provided along with other extensive documentation to back up what was attested to on the form. As a result of the deadline, an attorney can prepare cases in anticipation of audit. [modified 3/10/05 Ed.] This is necessary as there will be little time to submit everything to the government. If a timely response is not received, the employer will be considered to have refused to exhaust administrative remedies and no review, whether administrative or judicial is possible. Also, at the discretion of the Certifying Officer, the Employer may also be required to conduct supervised recruitment for any future labor certification filings for up to two years.

Upon submission of the back up documentation, either the certification will issue, or it is possible that no certification will issue. Additional recruitment may be required.

While there has been discussion of a filing fee for labor certifications, currently there is no filing fee payable to the government, nor will it be even under PERM.

One labor certification is required per employee. We first analyze the job offer as compared to the alien's background, articulate the minimum education, experience and any special requirements for the position, and obtain the prevailing wage for the appropriate job offer from the State Workforce Agency. Recruitment is done, the back up documentation prepared and retained by the employer, and the case, is electronically submitted.

There are many thousands of cases left over from the regular labor certification and RIR processes that could affect processing times of those cases. It is possible to re-file a new PERM case for an identical pending case. Pending cases have been relegated to Backlog Reduction Centers, which, in anticipation of PERM were created to handle and bring up to speed, existing cases. With attention on PERM though, it is unclear that reduction will occur quickly on pending cases. It is currently anticipated that it will take 24 - 30 months for cases to clear through backlog reduction. Pending labor certification cases could actually take longer with PERM.

Also, there is a law referred to as section 245(i) that created a bubble of cases in April 2001 that we are now seeing are beginning to oversubscribe immigrant visa availability. That means that as time goes on, over the next 10 or so years, as I predict, while a PERM labor certification part of a person's case will go quickly, things will bog down in time at CIS. This is because there are a limited number of immigrant visas available annually. When supply is outstripped by demand, a person must wait until his/her "priority date" (filing date of the labor certification) to become available again. We have seen retrogression begin in some categories already. If you have a labor certification now pending with the Department of Labor, it would behoove you to consult with an attorney] [modified 3/10/05 Ed.] to determine whether you are a good candidate to refile under PERM. If you are, you could save years later on in the process. How much time cannot be known as the problem with oversubscribed priority dates in the future is only just beginning. The negative affect of retrogression is that permanent residence cannot be approved until visa numbers become available. This can sometimes be a period of protracted years.

Also, in my 25 years of experience, when the government quickens certain cases, resources are taken away from others, creating greater backlog elsewhere. It seems the government is constantly putting out fires, with the biggest blazes getting today's firefighters. Please bear in mind that processing times are always subject to change. Further, substantive based procedures are also subject to change as the laws upon which immigration procedures are based are changing more rapidly.

What happens after a labor certification is certified?

After labor certification approval, there are two more applications: the petition to CIS, and the acquisition of green card status by adjustment of status through the CIS or visa processing through the DOS at an Embassy or Consulate abroad. The petition affirms the relationship between the employer and the employee: that the employer is capable of hiring the employee in a permanent fulltime position through a showing of other payroll employees and financial viability to hire the alien and that the employee qualifies for the position by meeting or exceeding the requirements for the job on the labor certification. The adjustment of status in the U.S. or visa processing from abroad qualifies the alien as one who is admissible for immigration and consideration of a person's health (communicable diseases make a person inadmissible), criminal record, likelihood to become a public charge, and such are examined.

Alone, or optionally, concurrently with an Application for Adjustment of Status, after a labor certification has been approved, the employer files the CIS I-140 petition form on behalf of the alien. When filed alone, the petition stage takes nine months currently. Adjustment of status, whereby a person secures the permanent resident status here in the U.S. without traveling abroad takes an additional nine months, whether filed separately or concurrently with a petition. The alternative, a three-step process involving an immigrant interview abroad may be beneficial as it takes approximately three months less time currently. The downside is that it also involves the cost in traveling abroad, an interview for sure, which is not the case when adjustment of status is filed, and possible time and effort involved in extension of current nonimmigrant status. Filing an extension of nonimmigrant status can be foregone after adjustment of status is filed.

What are the responsibilities of the sponsoring employer?

At the outset, the employer must provide information about the company, for the job duties, specification of the requirements, including possible special language, skill or knowledge requirements, recruitment methods, and be available for the crafting of the case.

The most crucial area of responsibility for the employer is the recruitment effort. The employer must account for the candidates who responded to its recruitment efforts. It will be important to encourage the candidates to send the employer a resume, and the employer to obtain their name and address (snail and Email) for follow up. The employer must interview applicants who may qualify for the position and give lawful, job-related reasons why the person is not qualified.

In addition, all labor certifications require that the job opening must be posted manually or electronically for 10 consecutive working days at the place of business. This posting must contain a salary (a range is OK so long as the bottom end is at or above the prevailing wage). The results of the internal job posting must be made part of the record of recruitment just in case it is needed for audit.

It is also important for the employer to advise any staff that will be answering telephones at the time of recruitment that the particular position is being advertised and is available.

After labor certification approval, the employer will be asked to sign the I-140 petition for to be submitted to CIS, sign a letter in support of the petition and provide documentation concerning evidence of the annual income of the company (tax returns, annual report, financial statement, etc.). The financial documentation assures that the employer has the ability to pay the alien, which it must do from the time of filing the labor certification to approval of permanent residence. So, financial information will also be requested at the very beginning of the case to assure there is no misunderstanding as to the required figures requested when the government asks for "gross" and "net" income later in the I-140. If the alien is interviewed by CIS, which occurs sometimes at random or sometimes due to issues that arise, the employer will be asked to provide a letter and financial responsibility verifying the alien's continued job offer. As an interview is not normally required, this is an additional service not part of our retainer agreement. This is the final stage of employer responsibility for labor certification based permanent residence. Upon obtaining permanent residence, the alien is to be employed with the employer under conditions that would apply to any person in the employer's employ, except under limited circumstances in which the employee is permitted to switch employers.

Labor certifications usually are handled by one attorney representing both employer and employee interests. While your interests have the same goal, it is possible that a conflict of interest may develop during the case, and attorneys generally advise you of this if it were to happen.


About The Author

Alice Yardum-Hunter has exclusively practiced immigration law for 25 years. She is a Certified Specialist by the State Bar of California Board of Legal Specialization, a former Commissioner to the Board, and for 2004 and 2005 is honored as a "Super Lawyer" published by Los Angeles Magazine after survey conducted by Law and Politics, which asked 65,000 regional lawyers to name the best lawyers whose work they'd personally experienced in action, taking into account not just reputation. Thereafter, to make the final list, apparent winners were researched for disciplinary actions and passed muster of a Blue Ribbon panel of judges in the field.


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