Labor Certification

Permanent Alien Labor Certification

Permanent alien labor certification is the first of three steps toward lawful permanent residence in most employment-based cases. It is required under Sections 212(a)(5) and 203(b) of the Immigration & Nationality Act, per procedures set forth in the labor regulations at 20 CFR 656 et seq. Some fundamental requirements of labor certification remain unchanged since its inception in 1980, while others have undergone many refinements and revisions. In an application for labor certification, the sponsoring U.S. employer must attest to the Department of Labor under penalty of perjury, and be able to document that:

• The employer has a full-time, permanent job opportunity for a position located in the United States.
• The job offer is bonafide, and is available to any qualified U.S. worker possessing the minimum requirements for the job, who is able, willing and available to accept the offered position as specified in the ads.
• Requirements for the job as stated in recruitment ads are the employer’s actual minimum requirements necessary to perform the job duties of that position competently; they were not tailored to the foreign worker.
• Job requirements are not unduly restrictive, as compared to USDOL requirements deemed “normal to the occupation” as a whole, except as arising from the employer’s business necessity.
• The employer has offered, and is able to pay, the prevailing wage for the offered position, as determined by USDOL for that occupation in the area of intended employment.
• There are no U.S. workers who meet the required minimum qualifications and who are willing, able and available to do the offered job.
• Employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The U.S. Department of Labor implemented PERM (“Program Electronic Review Management”), an online filing and attestation process, effective as of March 28, 2005. The PERM framework is complex, rigid and unforgiving, and is best negotiated with the help of an experienced business immigration attorney. Immigration lawyers today often refer to PERM as a process of “rulemaking by denial,” since policy and procedure are frequently reinterpreted, yet changes are often announced as rules only after they have gone into effect.

Key issues to address early in a PERM case include:

• Review minimum requirements more than once before recruitment so as not to leave out real required credentials: it’s impermissible for an employer to reject applicants for lacking qualifications not stated as a requirement in the ads.
• Review the benefits and perks of the job also: it’s impermissible to offer the sponsored foreign worker benefits that are not made available to US applicants for the job, such as remote work.
• File a prevailing wage request first, to avoid expiration of ads or job order while a wage request is still pending.
• Get proof of worker’s degree and experience up front. A resume is not proof. Diplomas and final transcripts are proof of education, and signed work experience letters from prior employers are proof of past work experience.
• Get written assurances from the sponsoring employer that they are willing to provide their tax returns from the year of PERM filing onward, to meet “ability to pay” evidence requirements at the immigrant visa petition stage.

Since July 16, 2007, the sponsoring employer is required by regulation to pay all costs of preparing, filing and obtaining labor certification, including classified ads as well as attorney’s fees and expenses. Costs incurred in the labor certification process cannot be paid by or transferred to the foreign worker, nor can they be paid by a third party on the worker’s behalf; the employer may not later recoup any such costs via deductions from wages or benefits, nor by clawback provisions requiring reimbursement should the worker quit the job within a specified period of time after the grant of residence.

Contact Karin Wolman for more information about Permanent Alien Labor Certification today!