Top stories
Requirements for PERM Labor Certification
USINFO | 2013-10-25 10:35
The PERM Labor Certification application imposes specific requirements (listed below) both on the employer and the prospective employee. The employer must comply with the PERM process requirements and adhere to the PERM Regulation.
Employer Requirements
1.The employer who files the application on behalf of the alien must attest to the following:
2.The position should be a full-time job offer located within the U.S.;
3.The position should be a bona fide job offer available to U.S. workers;
4.Job requirements should not be tailored to the alien worker’s qualifications. In other words, the employer must establish that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity;
5.The offered wage must meet prevailing wage requirements. The wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment, as the 5% deviation is no longer acceptable;
6.There are no qualified U.S. workers able, willing, qualified and available to accept the job offer through the specific recruitment processes; and
Employment of the alien will not adversely affect the wages and working conditions of U.S. workers.
Prospective Employee Requirements
The prospective employee who benefits from the application must attest to the following:
1.He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed;
2.He/she maintains a valid U.S. status if living within the U.S.
To promote startup enterprises, reduce barriers and accelerate growth for job-creating entrepreneurs, since 2011 the USCIS has allowed foreign entrepreneurs to apply for labor certification under EB-2 if they satisfy the existing requirements.
In Labor Certification, the U.S. sponsoring employer is the petitioner and the prospective alien employee is the beneficiary. Although not explicitly permitted in the regulations, the DOL and the USCIS informally allow sponsoring employers to apply for Labor Certification and file an Immigration Petition on the basis of prospective employment. In other words, it does not matter whether the alien works for the sponsoring employer during the application process or after it is approved. Meanwhile, the sponsoring employer does not necessarily have to continue to employ the alien. However, the foreign employee has to work for a reasonable period of time for the sponsoring employer after receiving permanent residency.
Effective July 16, 2007, the employers must pay all the costs of preparing, filing and obtaining labor certification, including recruitment and attorney’s fees. The employers are no longer permitted to transfer the costs incurred in the labor certification process to the alien. The DOL rules state that an employer is prohibited from receiving payment of any kind as an incentive or inducement to file, or as reimbursement for the costs of preparation or filing of an application for labor certification. This includes the employer’s attorney’s fees. An employer also cannot recoup the costs by deducting those amounts from the alien’s wages, salary or benefits. In other words, the employer and alien must each pay their own attorney’s fees, and the alien is not allowed to pay the employer’s portion of those attorney fees.
