All labor certifications filed since March 28, 2005 have been processed under
PERM.
A labor certification is issued to fulfill the requirement that an alien
immigrating to the US to work obtain a certificate from the Secretary of
Labor that their employment won't have an adverse effect on US wages or
working conditions, nor displace a US worker.
Beginning
PERM is designed to allow an employer to document that they have fairly
recruited unsuccessfully for a US worker, at prevailing wages and rejected
US applicants only for lawful job related reasons.
Unless an employer is subject to "supervised recruitment"
controlled by the USDOL, PERM
recruitment is self directed by the employer and completed before filing.
The State Department of Labor's involvement is limited to
placement of a job order
All recruitment must take place within six months of filing, and most
recruitment must be done at least 30 days prior to filing.
Recruitment will include:
a prevailing wage determination by the USDOL
A 30 day job order in America's Job Bank
Advertisements on two Sundays in the newspaper of general circulation
in the employment area.
If the employment is "professional" (i.e. in an occupation
which is deemed to normally require at least a bachelor's degree) three
additional recruitment steps are required, which can include job fairs,
an employer's web site, job search websites, on-campus recruitment,
trade or professional organizations, private employment firms, employee
referral programs, campus placement offices, local & ethnic
publications, and radio and TV advertisements.
The employer must post the opening internally, and include a posting
in all print and electronic internal media where notices of opening are
normally posted by that employer.
Ready to file
When recruitment has been concluded, the employer must prepare a
recruitment report, documenting its compliance with all required
steps. The recruitment report will include the number of US workers
who applied, the number hired, and the lawful job related reason why US
workers who were not hired were not qualified for the position.
A US
applicant who can perform the duties of the position with a reasonable
amount of training cannot be considered "unqualified."
Documents supporting the PERM application must be retained by the employer
for five years.
Filing
The actual PERM filing may be submitted electronically, and contains the
employers assertions that it has complied with all requirements. If
submitted electronically, there will be an interactive review of the form
which will prevent incomplete filings.
Applications which are mailed in will be electronically entered by clerks
- and if incomplete will be automatically denied.
Review
The PERM application will be initially reviewed electronically by an
"intelligent" system which will select certain applications based
on specific answers or combinations of answers. Others will be
selected for audit randomly for quality control
If not selected for audit, the application will be reviewed by an officer
of the Department of Labor who will cause a certification or denial to be
issued, based on the content of the application.
Audit
If an application is selected for audit, an employer will have 30 days to
respond to a request to produce required documentation. Failure to
respond to such a request will be considered an intentional violation of the
employer's PERM obligations and may result in the employer being subjected
to a period of supervised review for future applications - as well as denial
of the pending application.
Approval/Denial
If an application is denied, an employer may file an appeal within 30
days. IF the application is approved, the employer may file a preference
petition with the CIS - and if the alien's priority date is current - the
employee may simultaneously file an application for adjustment of status
("green card").
If the employer requested the filing date of an earlier nonPERM filing, the
Department of Labor will locate the earlier case (resulting in delay) and
compare the applications to determine if they are "identical."
If so, the PERM case will be approved with the earlier filing date.
Otherwise, the filing date of the approved PERM case will be the actual date
filed. In either event, and whether the PERM case is approved or denied,
the earlier labor certification is considered withdrawn.
The Department of Labor processing times have varied widely since PERM
was initiated - varying from less than 30 days, to more than two
years. The stated goal of the DOL is six months processing for cases
not selected for audit.
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