PERM Green Card by Labor Certification - Frequently Asked Questions
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January 2008 - A Sample of our PERM Approvals with DOL Processing Times 11/25/2007 - Increase in PERM audits PERM Fraud Rule FAQ's PERM FAQ 5 PERM FAQ 4 PERM FAQ 3 PERM FAQ 2 PERM FAQ 1 What is PERM?
EB-2: In order for a petition to qualify for EB-2, the position must require at least a Masters Degree (or foreign equivalent), or a Bachelors Degree and 5 years of experience (none of the experience can be obtained with the sponsoring employer). EB-3: In order for a petition to qualify for EB-3, the position must require at least 2 years of experience (none of the experience can be obtained with the sponsoring employer).
What is the prevailing wage?
The employer must show evidence that they have the ability to pay the prevailing wage during the I-140 petition (the 2nd step in the green card process). Such evidence includes copies of the company's 3 most recent federal income tax returns or audited financial statements, or if the company has over 100 employees, a letter from a company attesting that the company has the ability to pay the prevailing wage. This financial documentation is submitted with the I-140 petition to USCIS. How can I find the prevailing wage range?
Notice of Filing FAQ's Posting Timeframe May I post a Notice of Filing for a permanent labor certification indefinitely?
In addition, the Notice of Filing must contain the correct prevailing wage information, the correct job description and must comply with all other Department of Labor regulatory requirements. Posting Quantity I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?
For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties). NOTE: At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed. Posting Location Where must I post a Notice of Filing for a permanent labor certification for roving employees?
The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located. If the employer does not know where the employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies’ headquarters. If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application. Notice of Filing Language Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?
The language should give sufficient notice to interested persons of the employer’s having filed an application for permanent alien labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer’s in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer’s address, then information as to where the address can be found must be provided. Advertisement Content FAQ's Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application?
However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application. Can jobs requiring experience be advertised through an on-campus placement office?
The preamble to the regulation (69 Fed. Reg. 77325, 77345 (Dec. 27, 2004)) assumed that this option would be used only if the employment opportunity requires a degree but no experience. The Department has examined this policy in light of the fact that many college and university placement offices maintain job listings that are used by alumni with experience as well as recent college or university graduates. Consequently, the job opportunities requiring experience are included in the listings making campus placement offices a viable recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this option to be used for employment opportunities even if the job requires experience in addition to the degree. Is the employer required to include the statement, “any suitable combination of experience of education, training, or experience is acceptable” on the application when the employer requires experience in an alternate occupation and not in the job offered?
After completing our recruitment, but before filing the ETA Form 9089, our company’s name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?
However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer’s legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer’s name shown on the advertising used to recruit for a job opportunity and the employer’s name on the submitted ETA Form 9089, the employer must be prepared to provide documentation -- in the event of an audit -- proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity. Audit FAQ's Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?
The documentary evidence the regulations require the employer to maintain in its compliance file is what is sought in an audit request. For example, the use of an employer’s web site is to be documented by dated copies of pages from that site advertising the occupation involved in the application. However, if the employer does not have the primary evidence suggested by the regulation, it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17. In the case of the employer’s web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job. Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation. The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive. The United States Citizenship and Immigration Services (USCIS) has posted a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?
DOL will honor the use of the sample form, but is not endorsing or requiring its use. Employers may use other forms, as long as they comply with the PERM regulation. Please note that, while the USCIS sample does not include an employer name field, the Notice must contain the name of the employer if the application is filed under 20 CFR 656.17.
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