GLOBAL BUSINESS IMMIGRATION

WWW.EMPLOYMENTIMMIGRATION.COM

FAKHOURY LAW GROUP

What is PERM?

• Program Electronic Review Management

• The USDOL’s new electronic Application for Permanent Employment Certification process

• Design and purpose is to test the US market for any willing, able, capable and available US workers for the job opening before certifying to the DHS that it is permissible to issue or be eligible for an immigrant visa for a foreign national

What is required under PERM?

• All recruitment must take place between 30 and 180 days before filing

• Mandatory prevailing wage determination (PWD) from the State Workforce Agency (SWA). The employer must file or begin recruitment within the validity period of the PWD.

• Two Sunday print advertisements• Placement of a 30 day job order with the SWA• Must be as “Real World” or in harmony with

company’s “Non Perm” requirement• One big difference – “minimally qualified” and

not most qualified• Three additional recruitment steps must be

taken from the following list…

Additional Recruitment Steps

• Job fairs

• Employer’s web site

• Other job search web site

• On campus recruiting

• Trade/professional organization ad

• Private employment firm

• Referral incentive program

• Campus placement office

• Local/ethnic papers

• Radio/TV ads

Content of Print Advertisements

• Employer’s name

• Physical address or P.O. Box

• Indication of geographic area to apprise workers of travel requirements

• Job description sufficient to apprise workers of the job opportunity

• Ad need not be lengthy or detailed

• No need to state salary or benefits

Recruitment Report

• Must describe recruitment performed• Results must include number of hires, number

of U.S. workers rejected, categorized by reason for rejection.

• Lack of experience is NOT considered a lawful job related reason for rejection if applicant is capable of acquiring the skills during a reasonable period of on-the-job training.

• All resumes must be saved for 5 years.• The recruitment report MUST be prepared prior

to filing the PERM Application• The recruitment report must be prepared by the

individual or individuals who normally handle “non perm” recruitment

Completing form 9089

• Actual MINIMUM requirements must be stated, NOT the ideal requirements or “Most Qualified”

• May only consider the training and experience the alien possessed at the time of hire

• ANY question left blank either intentional or unintentional is an AUTOMATIC denial of the Application for Permanent Employment Certification (“Application”).

What is EB-2 and EB-3?

• Employment Based preference categories 2 and 3.

• When filing the I-140 Petition it must be indicated under which preference category you are filing. The preference category is based upon the minimum educational requirements as stated in the Application.

• To qualify for an EB-2 filing the employer must indicate on the Application that the minimum requirement is a Master degree or the equivalent. A four year Bachelor degree followed by five years of progressive experience is equivalent to a Master’s degree

• Must justify and must be consistent with company hiring/recruitment standards

• Current Priority Date for EB-2 – 01 January 2003

• Risks

What is EB-2 and EB-3 …contd

• To qualify for an EB-3 filing the employer must indicate on the Application that the minimum requirement is a Bachelor degree or two years of experience and no formal degree

• EB -3 priority date 22 April 2001

Is there an advantage in filing an EB-2 over EB-3?

• Possibly. The EB-2 or EB-3 category has no effect on the processing of the Application. However, it can affect when the I-485 Adjustment of Status petition can be filed.

• Difference in waiting to be eligible for filing an Adjustment of Status is about 2.5 to 3 years

Where is the application filed?

• The Perm Application is filed in one of two PERM processing centers:

• Atlanta, Georgia• Chicago, Illinois

• As to which center your Application will be filed in depends on the state that your employers principle place of business is located.

What does the USDOL do once they receive an application?

• After the Application is received the automated system will either approve, deny or flag the Application for an audit.

• If an audit letter is issued, the USDOL may request to see the resumes, the recruitment summary report, the alien’s documents or raise questions as to the recruitment process and reasons for rejection of some or all the U.S. workers. They could also raise a plethora of other issues as well.

What happens with an Audit?

• After the audit letter is issued the employer has 30 days in which to respond, failure to respond is an automatic denial.

• Once the response is received the USDOL may certify, deny or require supervised recruitment for up to two years.

• Must take all precautions to avoid an intrusive audit that could lead to Supervised Recruitment.

What if the application is denied?

• The employer may elect to file a new application. Under PERM there is no longer a six month waiting period to refile.

• The employer may elect to file a Motion for Reconsideration within 30 days, however, NO new evidence may be submitted at that point.

• The employer can also file a BALCA appeal, but a new application may not be filed while an appeal is pending.

Validity of the Labor Certification

• An approved labor certification is valid indefinitely, unless invalidated by a consular officer or the DHS because of fraud or a material misrepresentation.

What about Revocation?

• Under PERM, the certifying officer, in consultation with the DOL national office, may revoke an approved labor certification if they find the certification “not justified.”

• The rule does not state when this revocation can take place. We can presume that a revocation would not take place more then five years after certification, since the employer would then be at liberty to dispose of documentation. But this is only a presumption, the rule itself does not so state.

• Open liability for employer and/or attorney if revocation takes place.

Sources of Complainants

• Disgruntled employee

• Competitor in market

• US Worker Advocacy Groups (American IT workers watchdog)

• Economic downturn

Strategy – Going Forward

• Commence PERM while candidates are still in India

• Critical and cost effective retention tool

• A successful process can be a great recruitment tool

• Must approach conservatively as supervised recruitment will be very costly and will tie up corporate time and resources

• Open liability if DOL revokes based on a short fall in the recruitment/testing of the US job market

Thank you