PERM/Labor certification offers an immigrant option for a foreign worker to work permanently in the United States.
Our approach to processing PERM Based Applications
When the PERM based system was first introduced, we were not among the first to file an Application under the new system! Through a quick analysis we determined that there were far too many problems to allow us to take advantage of the system right away. We waited until the program was trouble free and in August of 2005 began preparing our Clients for the new program through a careful step-by-step approach. We have successfully processed EB-2 and EB-3 applications for different positions for companies all over the U.S. Some of the PERM applications we have successfully processed to date include, Physicians, several IT Positions, Engineers, Teachers, Pharmacists, Technicians, Managers, Tennis Pros, Management Analysts, etc.
PERM Based Applications – Overview
Employers are now required to place two print advertisements on two Sundays [no requirement that they be consecutive] in a newspaper of general circulation in the area of intended employment. The ads must be placed at least 30 days prior and no more than 180 days prior to filing. Advertisements must be placed in newspapers of general circulation, or in professional journals before filing the Application for Permanent Employment Certification must:
- Name the employer;
- Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;
- Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
- Not contain a wage rate lower than the prevailing wage rate;
- Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
- Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.
Additional Recruitment Steps:
PERM requires professional positions to undergo 3 additional steps of recruitment
Acceptable additional recruitment steps are:
- Job Fairs
- Employer’s Web Site
- Job Search Engine
- On-Campus Recruitment
- Trade or Professional Organizations
- Private Recruitment Agencies
- Employee Referral Program
- Campus Placement [If job only requires degree w/no experience]
- Local and ethnic newspapers
- Radio and Television Ads
The additional recruitment steps must take place no more than 180 days prior to filing. Only one of the additional steps may take place within 30 days of filing. Most H-1B positions would qualify as professional positions.
Report of Recruitment:
Employer must prepare a Report of Recruitment for each Application. The report must include details of number of hires and the number of U.S. workers rejected and lawful job-related reasons for rejection. The employer must sign the report and retain it for each application filed. The Employer is required to maintain the Report and all other supporting documents for a period of 5 years from date of filing.
If you have a prior Application that was filed on your behalf and you are seeking to use the filing date from that Application, please provide us with the filing date, copy of prior application and other proof of filing like, certified mail receipt, letter from the State Workforce Agency, etc.
First, the requirements for the position are based on actual job requirements and not your qualifications; Secondly, the salary of the position must be considered in making a final decision in this matter. Porting your EB3 priority date to a later filed EB2 petition is possible. However, this matter is best handled through a private consultation with our Firm.
The EB-2 classification includes: aliens who are “members of the professions holding advanced degrees or their equivalent” and aliens “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.”
- An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
- Letters documenting at least ten years of full-time experience in the occupation being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
- Membership in professional associations;
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.
- Aliens with at least two years of experience as skilled workers;
- Professionals with a baccalaureate degree; and
- Other workers with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
What is “Priority Date” for Employment Based Green Card purposes where the LC Application was substituted (Filed January 2002) and where can I find it?
Your priority date is the date of acceptance (filing date) of the substitute labor – January, 2002. Priority date is not always reflected on the I-1485 receipt.
Employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more and who currently have an approved I-140 petition may change jobs or employers without invalidating the underlying I-140 or labor certification, as long as the new job is in the same or a similar occupational classification as the one for which the petition was filed.
The USCIS will sometimes accept secondary evidence where letters from former employers are unavailable. However, you must as stated in the relevant paragraph from the RFE, explain and show why these letters are unavailable.
You can file an Application to allow your spouse to join you in your Green Card application up until the final adjudication or your Application to Adjust Status. In other words, it is not necessary to get married prior to filing the Form I-485, Application to Adjust Status. You are allowed to file an application on behalf of your spouse after the filing of the Application to Adjust Status, but prior to final adjudication.
Birth Certificate and Documents in Lieu of Birth Certificate
You will need to provide a photocopy of your birth certificate and a photocopy of the birth certificate of each family member applying with you. Please be advised that each of the birth certificates must include all of the following information
Applicant’s Full Name
Full Date of birth (Month, Day and Year)
Place of birth (City, Province/State if applicable, country)
Full Name of Mother (BOTH First Name and Last Name – maiden or married name.) Both first name and last name must be spelled out. An initial is not sufficient.
Full Name of Father (Both First Name and Last Name.) Both first name and last name must be spelled out. An initial is not sufficient.
Birth documentation must comply with the State Department Foreign Affairs Manual (“FAM”), which specifies documents required and available from each country. A Birth Certificate is available from most countries. In some instances, a Birth Certificate may not exist or may not contain all of the required information. If that is the case, the FAM will describe what alternative documentation may be submitted in place of a birth certificate.
If a birth certificate does not exist or it does not contain all of the required information as stated above, a sworn affidavit executed by both parents (mother and father) may be submitted. For a sample affidavit by both parents, click [here].
Alternatively, if either or both parents are not living, then the missing affidavit(s) can be signed by any other close relative older than the applicant, who is not party to the application and who has direct knowledge of the birth event and circumstances. Two affidavits are required. Here is a sample of the affidavit – word doc or pdf
The affidavit must specify the relationship between the signer and the applicant, how well the signer knows the applicant, date and place of the applicant’s birth, the names of both parents, and any other related facts. The affidavit must be signed and notarized. Here is a sample affidavit by a close relative- word doc or pdf. The affidavit can be modified accordingly.
Certificate of Non-Availability
When a birth certificate does not exist, a “Certificate of Non-availability” issued by a competent governmental authority confirming that the birth certificate does not exist should accompany an affidavit of birth. There is no set format for certificates of non-availability, but the document must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available.
Any document containing foreign language submitted to the INS must be accompanied by the full English translation, which the translator has certified as complete and accurate, and the translator must certify that s/he is competent to translate from the foreign language into English. The translation must be done by a third party (non-family member).
Certification of Translation
I, ________________________, certify that I am familiar with the English and _______________________languages, and certify that the above is a correct and accurate translation of the following documents attached hereto.
Date: ______________________ ______________________________ Name of Signer
PERM Certification Granted on Appeal – BALCA Decision Captures Diligent Effort by our Team
I shared the outcome of a BALCA appeal with a client who was delighted by its similarity to his own situation; he suggested I share the published decision (now in the public domain) with others who might benefit from the ruling. I demurred until I received this email: Mr. Kidambi, I am an AILA member and I am working on a project for AILA’s update to its PERM book. I am updating my BALCA case [...]
BALCA Upholds Denial Based on Procedural Grounds
BALCA found that when an employer requests review by BALCA, rather than filing a MTR, BALCA is only bound to consider information before the CO upon denial and the employer is prevented from supplementing the record with information. (Matter of University of California-Berkeley, 8/30/18) Read BALCA decision(PDF).
BALCA Upholds Denial Based on Newspaper Ads with Multiple Openings
BALCA found that while a single ad may be used for more than one position, it does not sufficiently apprise U.S. workers of an opportunity if it does not include the position’s title and includes a careless summary of duties and requirements. (Matter of Igate Global Solutions, 8/30/18). Read BALCA decision(PDF).
BALCA Overturns Denial, Says Advertisement of the Occupation Rather than Particular Position is Acceptable
BALCA upheld denial where the employer submitted a recruitment report signed by its agent, as opposed to itself, in direct violation of 20 C.F.R. §656.17(g)(1) which requires either the employer or its representative to sign the recruitment report. (Matter of DMPRO, Inc., 3/24/16). Read Balca decision(pdf)
BALCA Overturns Denial Where Employer Name on 9089 Did Not Match That on SWA Job Order
BALCA overturned the denial, holding that a minor typo in the employer name on the SWA job order did little to confuse potential applicants about the employer's identity or undermine the employer's §656.10(c)(8) attestation. (Matter of SWDWII LLC, 1/29/16). Read Balca decision(pdf)
BALCA Orders Grant of Certification Because SWA Job Order Is Not Controlled by 656.17(f)(6)
BALCA ordered certification to be granted despite a divergence of duties between Form ETA 9089 and the SWA job order, finding that 656.17(f) only applies to the required newspaper or professional journal. (Matter of Pinnacle Technical Resources, Inc., 1/21/2016). Read the Balca case here.