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PERM Processing

On 06.27.13 | In USCIS Blog, By USCIS Info

PERM Labor Certification

When a U.S. employer requires persons from abroad to come to work permanently in the U.S., they need to follow certain procedures before they can sponsor green cards for eligible foreign nationals. The employer has to first and foremost establish that there are no U.S. workers available to take up this position. The employer has to advertise the position and conduct a recruitment drive to find a suitable person in the U.S. If such a person is not available, or if they are not willing to take up the offered job, then the employer can look for resources outside the U.S. It is the responsibility of the employer to also prove that offering the job to a foreign national will not affect the wages or working conditions of U.S. workers.

Before hiring from abroad the employer has to get a Labor Certification application approved by the Department of Labor. PERM, Program Electronic Review Management, is a Labor Certification application process that came into effect on March 28, 2005. This is the process through which employers file Labor Certification applications with the Department of Labor.

The Labor Certification approval by the Department of Labor certifies to the USCIS that there are no U.S. workers capable or willing to take up the offered position and that hiring a foreigner for the job will not affect the wages or working conditions of U.S. workers.

PERM process allows for the submission of applications online or by mail. No supporting documents are required initially. Cases that are marked for auditing would require supporting documents. PERM has standardized recruitment procedures and the processing time for most PERM Labor Certification applications is around three months.

PERM Processing Times

When the PERM process came into effect it was told that the processing time for most cases would be 3 months. The Department of Labor’s PERM processing time as of September 3, 2013  is as follows:

PERM Processing Times (as of September 1, 2016)



Processing Queue Priority Dates
Month Year
Analyst Reviews October 2016
Audits May 2016
Reconsideration Requests to the CO December
2016
Gov’t Error Reconsiderations Current

Source: http://icert.doleta.gov/#fragment-2

Analyst Reviews:The Analyst Review  dates posted  above reflect the month and year in which cases were filed that are now being adjudicated at the Atlanta National Processing Center. For various reasons, we may be completing the processing of applications filed prior to the month posted on iCERT

Audits: Certain cases are issued audit notices by the Department of Labor and the employers have to respond to the notice and provide the necessary supporting documents. Cases where the employers have responded to the audit notice by the DOL are referred to as ‘Audits’. All PERM cases are processed on a ‘First in first out’ (FIFO) basis. Audits are processed according to their priority dates. Audit dates posted above reflect the month and year in which cases were filed that are now being adjudicated at the Atlanta National Processing Center

Reconsideration Requests to the CO: When cases are denied they can be re-submitted for a review or reconsideration by the Certifying Officer at the DOL.  Reconsideration requests are reviewed by their priority dates. The Reconsideration Request to the CO dates posted above reflect the month and year in which cases that are now being reviewed at the Atlanta National Processing Center were appealed.

Gov’t Error Reconsiderations:  Cases may have been denied because of an error on the pare of DOL are filed. Such denials can be sent for a review and they fall under the category of “Gov’t Error Reconsiderations”. A response is sent within 45 days in case of Gov’t errors. If the DOL considers it not to be a Gov’t error it will automatically send the case for reconsideration. So if an employer does not hear within 45 days of sending a case for Gov’t Error Reconsiderations it can be safely assumed that the case has been automatically filed under Reconsideration Requests to the CO.

Note: The Department of Labor requests persons with pending cases that were filed more than 3 months ahead of the priority dates published in their latest processing time table to make an inquiry about their case status.

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The Rights of Workers

On 08.07.12 | In USCIS Blog, By USCIS Info

Temporary foreign workers and visitors are guaranteed certain rights during their stay in the U.S. Employers must respect these rights; failure to do so is punishable by federal law.

1. Right to Not be Retaliated Against

Employees shall not be threatened or punished for protecting their given rights.

2. Right to be Paid

Employees must be paid for all the work they do and must receive a minimum income of $7.25 an hour, the federal minimum wage.

3. Right Not to be Discriminated Against

Employees must not be treated poorly on the basis of gender, race, national origin, color, religion, or disability.
Employees should be offered equal pay and opportunity regardless of gender, race, national origin, color, religion, or disability.
Employees shall not be forbidden to speak their native tongue and may only be required to speak English if it is pertinent to the success of the job.

4. Right Against Sexual Harassment

Sexually harassment of men and women is strictly forbidden.
Employers must not demand sexual acts from employees.
Employers may not inappropriately touch, proposition, or otherwise offend employees in a sexual manner.

5. Right to a Healthy and Safe Workplace

Clean and safe housing;
Clean and accessible bathrooms;
Potable water for drinking and washing; and
Proper medical treatment if injured on the job.
The employer is responsible for the payment of medical emergencies if the worker is injured on the job.
If working with pesticides: the right to wash hands after using pesticides; the right to know when and where pesticides were used; workers must not be in the area when pesticides are being applied; and if safety equipment is necessary to mix and apply pesticides the employer must provide clean equipment that is in good condition.

6. Right to Join a Union and Bargain Collectively

The employee has a right to join other workers and bargain for more rights and/or pay.
The employee has the right to attend public speeches, rallies, and demonstrations.
The employee has the right to join a union or other work organization.

7. Right to More Protections Under State Law

Foreign workers are protected by many of the rights provided by state law.

8. Right to Leave an Abusive Employment Situation

If abused by an employer, the employee has the right to leave the job without punishment and also to make a formal complaint or file a lawsuit against the employer. However, if the employee’s visa is employment-based, leaving the job may make the visa invalid and he/she will have to return home or find an alternate visa to remain in country.

 

All temporary foreign workers are protected by the above rights. However there are additional protections guaranteed within each visa category.

A-3, G-5, and B-1 Domestic Employee Visas

  • Employers must provide an employment contract that complies with U.S. law. This contract must include:
    • An agreement by the employer stating that he/she will not keep from the worker his/her passport, employment contract, or other personal property;
    • An agreement by the employer to abide by all U.S. laws;
    • An explanation of how the worker will be paid and how frequently; and
    • A description of the worker’s duties, weekly work hours, holidays, sick days, and vacation days.

H-2A Temporary Agricultural Worker Visas

  • The employer must provide a written description of the terms of the workers employment that includes:
    • Benefits;
    • Wages;
    • Housing;
    • Work duration; and
    • Transportation benefits.
  • Minimum standard wage set by the government for hourly pay or pay by piece.
  • The worker should not pay U.S. social security taxes or fees to a labor recruiter in his/her home country.
  • Clean and safe housing provided by the employer at no charge.
  • The employer must reimburse the worker for travel cost from the worker’s home to the place of employment after half the contract period has been completed and payment for the worker’s travel cost home after the contract is fully completed.
  • The worker is to be guaranteed at least ¾ of the number of workdays stated in the contract period.

H-2B Temporary Non-Agricultural Worker Visas

  • The employer must provide return transportation costs for the worker’s trip home if the work ends before the contract is up or if the worker is dismissed for reasons other than performance.
  • The worker should not pay fees to a labor recruiter from their home country.

J-1 Exchange Visitor Visas

  • The program must be a minimum of three weeks unless sponsored by the U.S. Federal government.
  • The sponsor’s advertisement must accurately explain all costs, conditions, and restrictions of the program.
  • The sponsor must give an orientation that includes information on:
    • Description of the program and its rules;
    • Travel and entry into the United States;
    • Housing;
    • Fees, and costs, including living expenses, healthcare, and insurance costs;
    • Life and customs in the United States;
    • Local resources;
    • The sponsor’s address and the name and phone number of the person responsible for the visitor in the United States;
    • Contact information for the Exchange Visitor Program Services; and
    • The Department of State’s Exchange Visitor Program.
  • If the visitor is a part of the Summer Work Travel program and does not have pre-placed employment, the sponsor must help him/her find work.
  • If the visitor is in the U.S. for training or an internship, the sponsor must:
    • Interview the candidate in person, by telephone, or by web camera;
    • The sponsor must have a Training/ Internship Placement Plan (Form DS-7002) in place before the visitor can file for a visa;
    • The sponsor must provide a written statement of the costs and fees of the program as well as living expenses in the U.S.;
    • The training or internship must be at least 32 hours per week; and
    • If the training or internship is in agriculture, the working conditions and wages must meet U.S. federal requirements for agricultural workers.
  • The sponsor must ensure that the visitor has medical coverage.
  • The visitor must apply for and obtain a Social Security number and the employer must report all tax withholdings using this number.
  • Spouses and minor children who accompany J-1 visitors to the U.S. on J-2 visas may apply for work authorization but only if that income is not necessary to support the J-1 visitor.

 

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Petition for a Foriegn Worker, Form I-129

On 07.30.12 | In USCIS Blog, By USCIS Info

In order to employ foreign-citizens in the U.S. you will need to file form I-129, Petition for Nonimmigrant, as well as obtain a Labor Certification.

Follow these steps to file the I-129:

  1. Determine your reason for filing. Reasons for filing include:
    • New Employment, for first time employment with the U.S. company or for employment in a new position;
    • Continuation of Employment, to continue employment of a foreign worker in the same position;
    • Non-Material Change, if there is a non-material change in the position of the foreign worker such as a title of job change;
    • Additional Employment, if the foreign worker is to begin employment with an additional employer under the same nonimmigrant classification;
    • Change of Employer, if the foreign worker will work for a new employer in the same nonimmigrant classification; or
    • Amended Petition, for material changes in the foreign-worker’s terms and conditions of employment such as an adjustment of duties.
  2. Select the appropriate immigration classification:
    • E-2 CNMI, for those who wish to invest in the Commonwealth of Northern Mariana Island (CNMI);
    • H-1B, for foreign workers who are to be employed in specialty occupations;
    • H-3, for foreign-citizens who are to participate in a special education exchange visitor program;
    • L-1, for foreign workers who are to be employed in managerial or executive positions;
    • O-1A, for foreign workers who possess extraordinary abilities in the sciences, education, business or athletics;
    • O-1B, for foreign workers who possess extraordinary abilities in the arts or extraordinary achievement in the motion picture or television industry;
    • O-2, for foreign-citizens whose only purpose of stay is to assist an O-1 visa holder in a performance;
    • P-1A or P-1, for foreign-citizen professional athletes;
    • P1B, for foreign-citizen entertainers who will perform in an internationally recognized performance group;
    • P-2, for foreign-citizen performers who are a part of a reciprocal exchange program;
    • P-3, for foreign-citizens who will perform, teach, or coach in the arts or entertainment;
    • Q-1, for foreign-citizens who will participate in an international cultural exchange program; or
    • R-1, for religious workers.
  3. Complete the form and provide supporting documentation.
  4. File at the appropriate USCIS servicing center.
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ETA 9089

On 07.16.12 | In USCIS Blog, By USCIS Info

ETA Form 9089 is the Application for Permanent Employment Certification. In order to hire foreign workers to work permanently in the U.S. you will need to obtain a labor certification from the Department of Labor’s (DOL) Employment and Training Administration (ETA).  As of March 28, 2005 ETA Form 9089 replaced ETA Form 750. ETA Form 750 applications are no longer accepted.

In order to obtain a permanent employment certification, you must first meet the following requirements:

  • A full-time permanent job must be available to U.S. workers.
  • The qualifications for the job must match traditional requirements. In other words, job requirements cannot be changed in order to match the qualifications of the foreign worker.
  • The wage of the foreign worker must meet the current standard for that occupation.
  • You must have attempted to recruit U.S. citizen workers.

PERM Recruitment 

Before filing for a labor certification, you must actively recruit U.S. workers under the regulations for professional occupations (occupations requiring a bachelor’s degree or higher) under CFR §656.17(e)(1)  or the regulations for non-professional occupations under 20 CFR §656.17(e)(2).

You must include a recruitment report when filing ETA 9089 that includes the reasons for rejecting any U.S. applicants and the number of U.S. applicants that were rejected. U.S. applicant resumes may also be requested.

  • Complete the recruitment steps within the 6 months prior to filing ETA 9089.
  • A job order
    • Place a job order with the SWA for at least 30 days.
  • Two or more advertisements in newspapers or professional journals
  • 3 additional recruitment steps chosen from the following: job fair, employer’s website, job search website, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program, campus placement offices, local and ethnic newspapers, or radio and television.

The regulations for non-professional occupations are:

  • Complete the recruitment steps within the 6 months prior to filing ETA 9089.
  • A job order
    • Place a job order with the SWA for at least 30 days
    • Two or more advertisements in newspapers or professional journals

Source: http://www.foreignlaborcert.doleta.gov/pdf/PERM_Final_Rule_12-27-04_FR.pdf

PERM Application

You are required to keep copies of all supporting documentation and applications for at least 5 years after filing.

  1. Request and obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC) or from the Online Wage Library. If requesting a PWD from the NPWC complete ETA Form 9141 and send it to the NPWC in Atlanta.
  2. Complete ETA form 9089. Describe job duties, educational requirements, training, experience and other qualifications of the job that the foreign worker meets.Mailed applications must have a physical signature. Include information from the NPWC or the Online Wage Library—the prevailing wage, the prevailing wage tracking number, the SOC code, the occupation title, the skill level, the wage source, the determination date and the expiration date.
  3. File ETA form 9089 electronically or by mail.
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