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Employment-Based Permanent Residency, Can You Sponsor Your “Skilled” or “Other Worker”?

Jul05
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Employment-Based Permanent Residency, Can You Sponsor Your “Skilled” or “Other Worker”?

The submission of the ETA Form 9089, Application for Permanent Employment Certification, (also known as a Labor Certification, or PERM Application) is the first step for many foreign nationals in obtaining permanent residency in the United States. The importance of filing this first step is that the date of the filing of the PERM application with the U.S. Dept. of Labor establishes the “priority date” which governs when she/he can apply for and receive permanent residence in the United States.

Although there are other avenues, many foreign nationals find their occupation defined as an Employment-based Third Preference (EB-3) position.  The EB-3 category includes individuals whose positions are “Professional” requiring a bachelor’s degree; “Skilled” requiring at least two (2) years of specialized training or experience; or “Other Worker” requiring less than two (2) years of training or experience.

The purpose of the Labor Certification process is to test the U.S. labor market and demonstrate that there are not qualified, available U.S. workers for the position being offered to a foreign national.  The Labor Certification is processed using the U.S. Department of Labor’s Program Electronic Review Management (PERM) which is an online submission system.

The requirements that an employer must meet and document in order to sponsor a foreign worker are different for the “Professional” category versus the “Skilled” and “Other Worker” categories.  We will discuss the “Skilled” and “Other Worker” categories here.

In order to be eligible to file a PERM application for a “Skilled” or “Other Worker” employee, a U.S. employer must demonstrate that it has a full time, permanent, bona fide position available.   This test of the U.S. labor market and the process of PERM can be broken into three (3) main steps, with three (3) sources of advertising and recruitment completed.

Step 1: The position must be defined with objective, minimum requirements.  The foreign national being sponsored must be able to meet the objective, minimum requirements of the position prior to have begun working with the U.S. employer, if currently employed.

Step 2: The employer must obtain a Prevailing Wage Determination (PWD) from the U.S. Dept. of Labor.  This is the minimum salary for the position as determined by the DOL. The salary is based on the minimum requirements and category of the position.  With the submission of the Labor Certification, the employer will certify to the DOL that it will pay the required salary at the time the foreign national receives their permanent residence (green card).

Step 3: The employer must test the U.S. labor market using the specified means of the regulations for “Skilled” and “Other workers.”  For this category, three mandatory advertising and recruitment sources are required.

Skilled and Other Worker Mandatory Recruitment

  1. Internal Posting Notice. The internal posting notice is posted at the employment site for 10 consecutive business days. It is then removed and this recruitment period remains “open and quiet” for 30 days to follow. Upon completion of the posting, the employer signs a certification. The posting and certification are retained for and included in the audit file.
  2. State Workforce Agency (SWA) Online Posting. The position must be posted with the SWA in the state where the position is located for 30 days. At the end of the 30 days, this recruitment period remains “open and quiet” for 30 days to follow. Documentation of compliance with this step is printed from the SWA website and retained for the audit file.
  3. Two (2) Sunday Print Advertisements.  The position must be published in the newspaper of general circulation for the work location. After the second publication of the advertisement, this recruitment remains “open and quiet” for 30 days to follow. Documentation of the advertising is obtained from the publisher and retained for the audit file.

At the end of the open and quiet period, all interested candidates who have applied must be considered.  Applicants can only be disqualified for the position based on bona fide, job related, articulable reasons.  Some candidates may be disqualified based upon the application/resume they submit. Some candidates may need to be interviewed. In order to be deemed qualified, the candidate must meet each and every objective, minimum requirement and element of the offered position. All applicants and the outcome of their application and subsequent consideration must be recorded and retained in the audit file.

If a qualified, available applicant applies for the position, the employer cannot and does not file the online application.  The employer cannot demonstrate that there are no qualified, available U.S. workers and the process stops.  In this process, the employer is not required to hire the candidate who has applied.  The employer just cannot proceed.

However, if there were no qualified, available applicants for the position, the employer will document the outcome, certify that it was unable to find a qualified, available U.S. work for the position and file the online application.

The employer is required to maintain an audit file for U.S. Dept. of Labor review for five (5) years from the date of filing the PERM application.  The audit file contains all of the documentation of the advertising and recruitment efforts, as well as records of the applications received, and a complete review of all the of applicants qualifications as outlined above.

Lastly, it should be noted that by DOL regulations, the employer must pay all associated fees and costs, including but not limited to legal fees, advertising costs, etc.  The employer may not recoup these fees in any way.

The successful submission and approval of a PERM application is a great accomplishment.  With this step complete, the employer may begin processing the next step of obtaining approval of an Immigrant Visa Petition (Form I-140), and ultimately the foreign national employee may apply for and receive their permanent residence.  It is not an easy process and our office can help!

What if your employee is a professional?  Visit again soon for details on the processing of the Labor Certification for a professional employee.    If you have questions about how our office can help you sponsor your employee, please call to schedule a consultation.

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