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PERM

PERM is the new Labor Certification procedure for obtaining a green card, i.e., U.S Permanent Residency, through employment.

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an ...

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an application eligible for RIR conversion?

According to the Labor Department:

Yes. If the employer is able to remedy the shortcomings in the pattern of recruitment or documentation, requests for RIR conversion may be made even if RIR was denied previously up until the BEC begins supervised recruitment on the application, at which time the case is no longer eligible for conversion.

DOL publishes FAQs on RIR Conversion

The Department of Labor published a set of FAQs regarding the RIR Conversion Opportunity, i.e., the "hold harmless" or "safe harbor" recruitment period for converting traditional labor certification cases to Reduction in Recruitment. Note that in order to take advantage of this opportunity: "No later than January 20, 2007, the applicant or its designated attorney [must] send an e-mail to the appropriate BEC using the language specified (see question 9 below) indicating its intent to convert a TR case to RIR status." AND: "The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal." See below for the FAQs.

How employers determine whether to advertise under the recruitment requirements for professional or nonprofessional occupations

How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

According to the Labor Department:

The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

Is there any centralized way to get an attorney's current address into your system at the BPCs?

According to the Labor Department:

No, any correction or change must be sent to the appropriate Center following the instructions above.

USCIS New Policy: Individuals eligible for 7th Year H-1B Extension are NOT required to be in the U.S., or in H-1B status.

The USCIS has announced that after completing a policy review that it was clarifying that “Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.”  The 7th year H-1B extension is available for individuals with Labor Certification (PERM, traditional, or RIR) applications or I-40 petitions pending for more than one year, and for individuals who have approved I-140 petitions, under the terms of AC21.  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006. 

Are cases being assigned a new case number or is the current SWA or Regional Office number being retained for tracking purposes?

According to the Labor Department:

All cases are being assigned new case numbers once entered into the Permanent Backlog System (PBLS). Once a case has been entered into PBLS, the BPC will send the employer and attorney of record (if applicable) a letter with the new case number.

What role does an attorney or agent play?

According to the Labor Department:

Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the alien or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the alien. The agent or attorney may only participate if the agent or attorney is the employer’s representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for...

If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?

According to the Labor Department:

No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.

I am a new attorney of record for a permanent foreign labor certification case. Our firm wishes to notify your office of this...

I am a new attorney of record for a permanent foreign labor certification case. Our firm wishes to notify your office of this change. How do I do this?

According to the Labor Department:

Please send the appropriate Backlog Processing Center a letter stating the requested change and enclose a new signed and dated G-28 with the updated information. A separate G-28 is required for each case for which you want to make a change. Each G-28 must be signed and dated by the employer and/or the alien, depending on which party you represent.

Are college and university teacher occupations included in Schedule A?

According to the Labor Department:

No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

Can one advertisement be used for multiple positions?

According to the Labor Department:

Yes, an advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.

NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

How do you know if the job description contains requirements beyond those considered normal for the occupation? Does...

How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State Workforce Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer's obligation to inform the Department of Labor of these requirements?

According to the Labor Department:

The job summary specific to the SOC/O*NET code and Occupation Title provided by the SWA on the prevailing wage determination is considered to identify the requirements normal to that occupation. Any requirements in addition to those listed in the summary will be considered not normal for the occupation and the employer should be prepared to provide proof of business necessity if requested by the Certifying Officer. These summary reports can be accessed at http://online.onetcenter.org. Even if the employer has informed the SWA of these requirements in a prevailing wage determination request, the employer must still inform the Department of Labor by correctly attesting on the Application for Permanent Employment Certification, ETA Form 9089/Questions H-12 or H-13. Additionally, if the employer has not accurately attested on ETA Form 9089 that there are requirements not normal to the occupation, the application will be denied whether proof of business necessity is available or not.

Do I have to send my request within a specific time period?

According to the Labor Department:

Yes, your request must be e-mailed to the appropriate BEC no later than 30 calendar days after the posting of this announcement on the OFLC website.

How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

NOTE: Employers will not be permitted to submit applications by facsimile.

An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

Why did the prevailing wage two tier skill level structure change to four levels?

According to the Labor Department:

Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:

"Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."

The alien has a child who is about to "age-out." What can be done to expedite this application?

According to the Labor Department:

The policy of the U.S. DOL/ETA National Office prohibits the expediting of applications.

Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling?

Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?

According to the Labor Department:

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

What form is used to file an application for a labor certification for Schedule A occupations?

According to the Labor Department:

The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.

If filing an application under Schedule A, must an employer provide notice of filing?

According to the Labor Department:

Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.

Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection...

Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection with their application. How can we follow up on status of cases and at what point should we worry about not getting a letter?

According to the Labor Department:

Due to the large volume of files transferred to the two Backlog Processing Centers, we cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center within 45 days.

About Antao & Chuang

Attorney Roger S. Antao Attorney Enna Chuang

Experienced

Since 1991, Antao & Chuang, Attorneys at Law, has served clients located throughout the U.S. and the world in U.S. immigration matters (including H-1B, J waivers, L, E, O, P visa cases, green card cases, and other immigration matters). We represent individuals and companies (from small companies to major multi-national corporations).

Effective

If you retain our firm for your visa case, we will advise you on key legal issues, identify the necessary information for your case, prepare the necessary documents, file the case, enter our representation before the relevant U.S. government agencies or U.S. Consulate/Embassy as your attorneys, and communicate with the U.S. government agencies or U.S. Consulate/Embassy as your attorneys, as necessary. If you retain our firm for a consultation, we can advise you on specific legal issues or provide you with guidance regarding key decisions, as well as a summary of your available options.

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Search for H1B Visa Employers

You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

Use this form to search for H1B Visa employers.

"FMG Friendly" Employers

Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

Use this form to search for "FMG Friendly" employers in a given state.

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