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Most people who are sponsored by their employer for permanent residence must
go through the Alien Labor Certification process, now called PERM.
Under PERM, the employer is seeking certification from the Department of
Labor that providing permanent residence to the foreign national to perform
a certain job will not displace an American worker. Currently, the DOL
requires the employer to make an effort to recruit an American for the
position. If the employer can show that they were unsuccessful, then the DOL
will issue the Alien Labor Certification. The foreign national can then use
that Alien Labor Certification to file an application for permanent
residence with the U.S. Citizenship and Immigrant Service.
Although the process sounds easy, the Department of Labor has extensive
regulations setting up the requirements for issuing an alien labor
certification. One such regulation requires the employer to offer to pay the
foreign national the prevailing wage for the position in the area where the
alien will work. The Department of Labor has extensive regulations
concerning what constitutes a proper survey as evidence that the employer is
offering the proper wage. Caution: salary surveys that satisfy the
requirements for H-1b visas do not necessarily satisfy the requirements for
Alien Labor Certification.
The Department of Labor has recently amended the Alien Labor Certification
process with a new program known as PERM. Under this program, employers file
an application based upon recruitment efforts already undertaken by the
employer. Federal regulations set out specific criteria as to what amount of
advertising must be done to convince the Department of Labor that the
employer has made a diligent effort to recruit a U.S. worker for the
position. In addition, the regulations set out different levels of
recruitment for different types of positions. This makes sense, for a
university would not search for professor in the same way that a restaurant
searches for a chef. The Department of Labor will also audit certain cases
to insure that the recruitment was actually performed properly. The
Department of Labor promises to issue a decision on the application within
45 days.
The Department issued its regulations on this new procedure in December 2004
and the program became effective on March 28, 2005. Since then the
Department of Labor has issued numerous statements to the immigration bar
concerning how it will interpret different types of applications. As an
attorney, I keep on all of these new developments concerning the PERM
program.
As an attorney, I regularly process labor certifications all over the U.S. I
assist my clients with the best way for filing and processing their labor
certifications. |
