 |
|||||||||||||||||||
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
|||
 |
 |
 |
 |
 |
 |
 |
 |
||||||||||||
 |
 |
 |
|||||||||||||||||
 |
 |
||||||||||||||||||
Jun
17 2005 Feb
12 2005 Dec
9 2004 Nov
16 2004
|
PERM regulations
have finally arrived. These regulations allow for faster labor
certification. Practice advisories are available. Please
contact our office for an individual consultation to determine if PERM
is right for your case. Implementation date: 3/27/2005 PERM – Nuts and Bolts The US
Department of Labor has released the long-awaited PERM labor certification
rules governing the alien labor certification process for employment-based
permanent residency petitions. The rules for the new electronic filing
system are available online at CLICK
HERE and the program will go into effect in on March 27, 2005. * PERM Launch Date: March 27, 2005 * Generally, the advertising requirements are fairly lenient, and should be do-able * New Form called ETA 9089, to be filed electronically and certified electronically with the USDOL, and not the SWA (state workforce agency). * Processing Time: 45-60 days after filing. * The PERM process is attestation based, meaning that the USDOL takes the employer’s representations as the truth. The PERM labor certification process does not require submission of the foregoing recruitment documentation initially at the time of the filing. However, the Certifying Officer can ask for proof of such documentation during an audit, and the employer must make these documents available. Additionally, the employers are required to keep these documents as evidence for five (5) years from the date of filing of the PERM application. * Conversion of pending labor to PERM with Retention of Priority Date: An employer can convert pending RIR type alien labor certification application to PERM without losing priority date if the pending RIR type alien labor certification is withdrawn and re-filed within 210 days from the date of withdrawal and the occupation is identical. Conversion of a non-RIR (regular) alien labor certification to PERM is not available after the employer commences the SWA (state workforce agency) supervised recruitment process (job order). * PERM conversion timing critical for India, China and Philippines born nationals because if the alien labor certification is filed and pending under EB3, then it is very important to preserve the Priority Date and the PERM conversion must be done within 210 days after the pending alien labor certification is withdrawn.PERM is an Electronic Filing Method When the
PERM system is up and running, the new ETA 9089 form will be located
at the USDOL’s website at http://www.workforcesecurity.doleta.gov/foreign.
The site will include instructions for filling the form, as well as
prompts and checks to ensure applications are submitted properly.
There will also be a system that will allow employers that file PERM
applications pretty frequently, to set up secure files with in the ETA
filing system containing information common to any permanent application
they file. Each time an employer submits an ETA 9089, the common
information will be entered automatically (similar to the current ETA9035
for the LCA filing for H-1B cases) and only the data specific to that
application will need to be manually entered. An employer can convert pending RIR type alien labor certification application to PERM without losing priority date if the pending RIR type alien labor certification is withdrawn and re-filed within 210 days from the date of withdrawal and the occupation is identical. Conversion of a non-RIR (regular) alien labor certification to PERM is not available after the employer commences the SWA (state workforce agency) supervised recruitment process (job order). The following rules apply: 1. The
new PERM labor certification must be filed within 210 days after withdrawal
of the pending alien labor certification to preserve the old priority
date.
PERM
Recruitment Requirements PERM Recruitment requirements for professional occupations prior to PERM filing A.
MANDATORY RECRUITMENT STEPS 1. These
ads can be placed in a newspaper on two consecutive Sundays. B.
ADDITIONAL RECRUITMENT STEPS Required
Text of the Ads: The PERM regulation requires that the ads confirm
to certain requirements. 1. Name
of the employer; PERM
is an Attestation based filing and requires careful retention of the
underlying recruitment documents in the event of an audit: Employment
Based Green Card through Alien Labor Certification (Regular or RIR) For most individuals who obtain U.S. permanent residence through employment, the steps are: Step 1 - Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual. Step 2 - Immigrant Petition (I-140): Once the labor certification application is approved, the company files an immigrant petition with the U.S. Immigration and Naturalization Service (INS). Step 3 - Adjustment of Status (I-485): Once the immigrant petition is approved (*), the employee can apply for adjustment of status to U.S. permanent resident (for him/herself and his/her spouse and/or children, if applicable). (*) NOTE: After 7/31/02, INS issued a new concurrent filing rule and now, I-485 can be filed even while the I-140 is pending and not yet approved. In fact, both the I-140 and I-485 can be filed together (thus the rule is called the “concurrent filing rule”). STEP 1: The Labor Certification Application What is a labor certification? A labor certification is an official government finding that (1) no U.S. workers can be found, at the time of filing the application and in the geographic area where the job exists, who are available, willing, and able to fill the position; and (2) the individual’s employment will not "adversely affect" the wages and working conditions of similarly situated U.S. workers. How does a company get a labor certification? The company files a labor certification application (Form ETA 750) with the state employment security agency (SESA) of the state in which the job is located. The state agency completes preliminary processing of the application, and then forwards it to the appropriate regional office of DOL. The DOL regional office issues the labor certification. What goes into a labor certification application? The application form, Form ETA 750, has two parts. The first part (750 Part A) is a formal offer of employment. The offer of employment contains specific information about the job, including a description of the duties and responsibilities and the minimum qualifications a person must have in order to adequately perform the job. The second part of the application (750 Part B) is a statement of the qualifications of the candidate whom the company has selected for the job. This candidate may be in the United States already (for example, on an H-1B visa), or the candidate may be outside the U.S. The candidate must possess at least the minimum qualifications for the job as set forth in Part A of the application. The statement includes details about the candidate’s educational and work-related background. Copies of the candidate’s educational degrees and transcripts and letters from previous employers verifying the candidate’s experience accompany Part B. How does the government know whether there are U.S.workers to fill the job? A test of the labor market must show that there are insufficient U.S. workers available who are interested in and willing to take the job. There are two ways to conduct the test: (1) the employer can conduct its own test; or (2) the employer can let the government conduct the test. The first way leads to what is known as “reduction in recruitment” (RIR) or “fast-track” processing. How does RIR or fast-track labor certification application processing work? RIR labor certification applications are given top priority by DOL and constitute the preferred approach whenever and wherever possible. Fast track depends on an employer’s ongoing pattern of recruiting rather than performance of an individual test of the labor market. In other words, rather than placing individual advertisements for each application, a fast-track application is filed with a documentation package containing evidence of the company’s pattern of recruitment. What is the advantage of RIR processing? By far the best reason to take advantage of RIR processing is to cut time out of the process. The success of a fast-track application depends on the company’s recruiting efforts and the extensiveness of these efforts’ documentation. The fast-track approach can take one year or less* from filing to approval; however, not all DOL regions offer fast-track processing. What if the application cannot qualify for RIR processing? Some applications will not qualify for fast-track processing because 1) there is insufficient recruitment for the position; 2) the particular DOL region does not make fast-track available; or 3) the occupation does not have a shortage of U.S. workers. In such a case, the employer must pursue labor certification by conducting recruitment that is supervised by the state agency. These cases are given a lower priority and result in slower processing times. For example, in California, New Jersey, or New York, a non-RIR case filed this month might take three years or more* to process; in Illinois, it could take slightly less time. The labor certification application process can take so long, even for fast track. Is there any way around it? Most employees will need to go through the labor certification application process, but some will not. For example, high-level employees who are transferred to the U.S. from company offices abroad may be eligible to immigrate without first obtaining a labor certification. An employee with a Ph.D. in his or her respective field, as well as publications and other professional distinctions, may be eligible for “outstanding researcher” immigrant classification, for which labor certification is not necessary. Also, employees who can demonstrate that they rank at or near the very top of their field nationally or internationally may be eligible for “extraordinary ability” classification; labor certification would not be necessary for these individuals either. Certain jobs and projects have been found to be especially “in the national interest,” and employees working on such jobs may be able to bypass the labor certification process. It is the responsibility of your immigration attorney to carefully evaluate any new “green card” case for eligibility for outstanding researcher, national interest/extraordinary ability, or other classifications that might obviate the need for labor certification. The attorney will notify the employee and the company if such a route might be possible. STEP 2: The Immigrant Petition (I-140) What is an immigrant petition? An employer files an immigrant petition on behalf of an employee when the employer wishes to formally sponsor the employee for U.S. immigration. The petition is a formal offer of “permanent” employment (that is, employment of indefinite duration). What’s the difference between an immigrant petition and a labor certification application? A labor certification application is an application to the government (specifically, to DOL) asking for official certification that a job exists that can’t be filled by a U.S. worker. An immigrant petition is a petition to the government (specifically, to INS) asking the government for permission to hire a specific foreign national to “permanently” fill the job. Most immigrant petitions must be based on approved labor certification applications, because for most jobs, the law requires DOL to find that there is a shortage of U.S. workers for the job. What goes into an immigrant petition? The application form, Form I-140, provides information about the company (the “petitioner”), the candidate (the “beneficiary”), and the job offered. The employer must also request on the form that the beneficiary be classified according to a specific preference category. What is a preference category? Under U.S. laws, there are five preference categories in which an employment-based immigrant is eligible for assignment. Statutory quotas limit the number of people who can immigrate each year depending both on the preference category in which the person is classified, and the person’s country of birth. The vast majority of employment-based immigrants fall into either the second preference (EB2) or the third preference (EB3) category. What is the difference between EB2 and EB3? Generally, EB2 classification is for people who will work in jobs that require someone with either an advanced degree (for example, a master’s degree or Ph.D.) or its equivalent (i.e., a bachelor’s degree plus at least five years of “progressive” experience). EB3 is for people whose jobs don’t require such education or expertise. Classification is determined not by what education and experience the person actually has, but by what education and experience is necessary for the person’s job as set forth in the labor certification. What does it matter whether a person is classified as EB2 or EB3? Every year, quotas allow only a limited number of people to immigrate to the U.S. The quotas depend both on the preference category and the country of one’s birth. The laws do not allow more than a certain number of EB2 and EB3 individuals to immigrate, and each country is limited to a percentage of the total number of each category. For people from most countries, it makes no difference whether they are classified as EB2 or EB3, because both of these categories are “current” (meaning there is no waiting to immigrate) for most of the world’s countries. Only two countries have historically not been current from time to time – Indiaand People’s Republic of China. EB2 and EB3 immigrants born in these countries may face waits of anywhere from one to four years or more* before they are allowed to immigrate. Please check the latest Visa Bulletin. The situation changes from time to time. Since about 2000, all EB categories for all countries have been current. STEP 3: (I) ADJUSTMENT OF STATUS OR (II) CONSULAR PROCESSING In a nutshell: CP will require you to go to the US Consulate in your home country and get the Green Card there. You will have to plan a 2-week trip to your home country and appear at the US consulate on a pre-designated date for an interview. You will usually get the immigrant visa approval the same day. The entire process will take 4-6 months after I-140 approval, at the conclusion of which you will get your immigrant visa and re-enter the US as a “Green Card Holder”. Your spouse and children will also have to go with you at the same time and get their GC’s at the same time. Upside: You get your GC in 4-6 months Downside:
You have to go thru the hassle and expense of going to a US Consulate
in your home country Downside: It takes 12-20 months for approval If an employee has to wait to immigrate, how is the length of the wait calculated? The employee must wait until his or her “priority date” is current before he or she will be allowed to begin the third step of the immigration process. The priority date is the date the employee’s labor certification application was originally filed (generally, the date the application was received by the state employment security agency). Every month, the U.S. Department of State tracks the number of people who immigrate from all countries in each preference category. Based on those numbers, it designates certain priority dates for each category as current, and people holding these or older priority dates are eligible to move to the third step of the immigration process. If an employee has to wait to immigrate, how long might the wait be? An example can illustrate how the waiting process works. Suppose that a company filed a labor certification application on behalf of a Chinese national in a job requiring a master’s degree on May 1, 1997 (the priority date). The labor certification was approved by DOL on April 1, 1998. The employer then filed an immigrant petition with INS based on the approved labor certification on April 15, 1998, which was approved on August 15, 1998. Because the job the employee holds requires a master’s degree, the employee qualifies for and was given EB2 classification. When would this employee be eligible to immigrate? In November 1998, the State Department indicated that current priority date for Chinese-born EB2 immigrants was May 22, 1996. This meant that those immigrants whose labor certification applications were filed on or before May 22, 1996 were eligible to immigrate. The employee described above, therefore, would have to wait. If the difference between the current date and an employee’s priority date is one year, does this mean that the employee’s wait will be one year? Not necessarily. Priority dates do not advance at the same rate as the calendar. In some months, the date may not move at all; in others, the date might move forward by weeks or even months at a time.
|
 |
|||||||||||||||||
 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
© Copyright 2005. All rights reserved. Website designed and maintained by
