The first step in an employment petition is the labor certification process.
Certifying What
Today this is done through PERM (Program Electronic Review Management), culminating in an online ten-page submission of Form 9089 that is preceded by a bunch of steps in the labor certification process. The PERM labor certification is issued by the Department of Labor (DOL), in which the Employment and Training Administration (ETA) of the DOL, certifies that:
- There are noUSworkers who are able, willing, qualified, and available to accept the job
- At the prevailing wage for the particular position being certified
- In the location (county and state) of the intended employment, and
- That hiring the foreign beneficiary will not adversely affect the conditions and wages of similarly employedUSworkers
Form 9089
The form is done online at http://www.plc.doleta.gov. Here, employers or, as in most instances, their attorneys, fill out Form 9089. Take note that there are many steps prior to filling out this form, which will be discussed below. The advertising phase takes at least two months. The employer must register for the PERM system and also register their respective attorneys into a sub-account. The information obtained in the advertising phase, particularly the dates and medium of advertisement, are but some of the information needed in Form 9089.
This is a 10 page form (at the time of this writing) that was established on March 28, 2005. This is also savable and eventually filed by hitting a submit button with a pin number that is emailed to you after you register.
You obtain a priority date upon filing PERM. This priority date will be a reference in determining if and when an adjustment of status application can be filed, or if consular processing could be initiated.
This form, upon certification, would then be mailed to you in a hard copy blue textured paper, where the employer, attorney, and beneficiary have to sign. This is then submitted in its original signed form together as one of the supporting documents for the I-140 Petition.
Validity
The Labor Certification is valid for a period of 180 days.
This means that the I-140 must be filed within that time, or else the Labor Certification would lose its validity. It’s actually best to prepare most of the I-140 documents – form, ability to pay documents, foreigner qualification such as degrees and past experience letters – while waiting for the Labor Certification to be approved, so that by the time the Labor Certification is received, you can move on to simply have the respective parties sign and then file the I-140.
The I-140 would then come back with a priority date that coincides with the Labor Certification filing date, which as mentioned earlier, gives you that priority date as point of reference to determining, in conjunction with the monthly Department of State visa bulletin, whether you can file for adjustment of status or initiate consular the immigrant visa consular processing steps.
Pre-Filing and Recruitment
The PERM application itself is an online application of ten pages or so. You fill it out, press submit, and you wait.
But it is not that part that takes the most time. The form itself for practitioners is not the meat of PERM/ LCA applications. But it’s those steps that precede the actual filing of the application – the recruitment process, plus the registration process.
The registration process involves registering the company for PERM (unless they are already registered). The employer can do one themselves if they are filing it, but most of time, they register and then create a sub-account for the attorney. This results in a user name, passport, and a pin number which would later be used for the last step in fling the PERM application, where you have to enter the pin to confirm submission.
The prevailing wage request is also one of the first steps. You could not even fill out the PERM application itself because a page or so is dedicated to the information you’d obtain from the prevailing wage request.
It’s good to do the prevailing wage prior to the ads, as some of them may require the proposed salary, and you want to make sure the proposed salary is at least equivalent to or over the prevailing wage.
The next steps in the recruitment phase are as follows:
- Two print advertisements (two consecutive Sunday ads, or one Sunday ad and one professional journal ad if applicable)
- Job order from the SWA (State Workforce Agency) for 30 days or more
- On-site job posting for 10 consecutive business days
- For professional occupations (those that require at least a BS degree), at least three additional recruitment methods from the following ten:
- Job fairs
- Headhunter agencies
- Employer’s website
- Radio or TV ads
- Trade or professional journals
- On-campus recruiting
- Job posting other than employer’s
- Employee referral program with incentives
- Campus placement office
- Local or ethnic newspapers
The recruitment must occur within the 30-180 period before filing PERM, except for one of the “3 of 10” which can happen within 30 days of filing.
A lot of advertising entities could be hired to do these advertisements, including ADNET (www.adnet.com).
Summary of Steps
Below is a short step by step summary of the steps for the labor certification process.
- Prevailing Wage Request. This is one of the first steps because some of the advertisements would require the wage. You would get the prevailing wage, level, request number, and the code for the position. Take note that you can request a certain code or position, but then the DOL would give you a different one based on the job description you provide. This sometimes is tough because you may be shooting for a Job Zone 5 EB-2 position but they would provide you with a Job Zone 4 position.
- Job order. Can only file 60 days from when the job order is posted. Record the job order date.
- Internal Job Posting. This must be signed, must have the DOL address, and must have the date of the postings among other information.
- Recruiting. This is where the 2 Sunday Ads (or 1 plus professional journal) plus the “3 of 10 above” (if professional) ads should take place. This could take place earlier also, but it’s good to start with the prevailing wage request to see the required salary for the position.
- Registration. Employer should register for PERM. They may also create a sub-account for the attorney.
- Form. Employers or their attorneys, while waiting for the “60 day period from the job order or 30 days from the last ad, whichever is later” timeframe, could start filling out the Form based on whatever steps have been done. This would save time, and allow the preparer to ask the respective parties any information that may be needed for the form itself, such as previous employers and their contact information, relevant details about their past experience and degrees, etc.
- Submission. Complete the form, enter pin, and click submit.
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