Permanent Labor Certification

PERM: Permanent Labor Certification for Employment Based Permanent Resident Status -Green Card.

One of the ways a Foreign Alien worker can become a Permanent Resident of the United States is through Employment. In general, the U.S Immigration Law requires a U.S Employer Filing an Employment based Immigrant Visa Petition Form I-140 in Employment based category 2 (EB-2) and Employment based category 3 (EB-3 ) to first obtain an approved Permanent Labor Certification Application from U.S Department of Labor on behalf of the foreign Alien worker showing that such employer could not find a willing,qualified and able worker within the U.S labor market and that employing a foreign worker will not in any way affect the wages and working conditions of other U.S workers similarly employed.

 

Permanent Labor Certification Attestations.

A United States Employer Filing a Labor Certification Application on behalf of a Foreign Alien Worker must attest to the Conditions of Employment i.e

  1. The Employer will pay the Foreign Alien worker the prevailing wage or higher wage that is applicable at the time of Employment .
  2. The Employer has the funds and Financial means to pay the offered wage.
  3. The Employer will be able to place the Foreign Alien worker on the payroll on or before his or admission into the U.S;
  4. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
  5. The Employer’s job opportunity is not vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage;
  6. The job opportunity’s terms, conditions & occupational environment are not contrary to Federal, state or local law;
  7. The job opportunity has been & is clearly open to any U.S. worker;
  8. The job opportunity is for a full-time, permanent position .

 

Pre-filing Recruitment.

Employers are required to conduct recruitment to test the labor market before filing Permanent Labor Certification Applications, this is called pre filing recruitment .Labor Certification Applications involving college or university teachers, Schedule A occupations and sheepherders do not requires pre filing recruitment.

 

Prefiling Recruitment for Professional Occupations.

Professional occupation means an occupation for which the attainment of a bachelor’s or higher degree is the usual minimum education requirement. A job order and two print advertisements are mandatory for all Permanent Labor Certification Applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process. The Employer must select three additional recruitment steps from the following alternatives. .

  1. Job fairs.
  2. Employer’s Web site.
  3. Job search Web site other than the Employer’s.
  4. On-campus recruiting.
  5. Trade or professional organizations.
  6. Private Employment firms.
  7. Employee referral program with incentives.
  8. Campus placement offices.
  9. Local and ethnic newspapers.
  10. Radio and television advertisements.

 

Prefiling Recruitment for Non Professional Occupations.

Non-Professional occupation means any occupation for which the attainment of a bachelor’s or higher degree is not a usual minimum requirement for the occupation. The Employer must place a job order and two newspaper advertisements prior to filing the Labor Certification application with the department of labor.

 

Advertising Requirements For Permanent Labor Certification.

Advertisements for the Permanent Labor Certification Application must:

  1. Contain the Employer’s Name;
  2. Contain where and how applicants are to report or send resumes ;
  3. Provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity;
  4. Indicate the geographic area of Employment
  5. Not contain a wage rate lower than the prevailing wage rate;
  6. Not contain any job requirements or duties which exceed the minimum job requirements or duties and
  7. Not contain wages ,terms and conditions of Employment that are less favorable than those offered to the foreign Alien worker.

The terms of Employment must not be tailored to the specific skills, education, or experience of the Foreign Alien worker, thereby calling into question whether a bona fide job opportunity actually exists. An employer is required to prepare recruitment report describing the recruitment steps undertaken and the results .

 

Notice Requirement.

Before filing the Labor Certification Application, the Employer is required to have provided notice of the Permanent Labor Certification filing to;

  1. The bargaining representative(s) (if any) of the Employer’s employees.
  2. If there is no such bargaining representative, by posted notice to the Employer’s employees at the facility or location of the Employment.

The notice must be posted for at least 10 consecutive business days. The purpose of the notice requirement is to provide any person with the opportunity of submitting documentary evidence bearing on the Permanent Labor Certification Application.

 

Job Duties & Minimum Job Requirement.

The job requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and the employer’s actual minimum requirements .Working conditions must be normal to the occupation in the area and industry.

An approved Permanent Labor Certification is valid for 180 days within which time it has to be used in support of a Form I-140 petition to United States Citizenship & Immigration services.

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