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Permanent Labor Certification
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. Before the U.S. employer can submit an immigration petition to the Department of Homeland Security's Immigration Service, the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the Immigration Service that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The DOL processes employer applications for Alien Employment Certification (ETA Form 9089). The date the labor certification application is filed is known as the filing date and is used by Immigration and the Department of State as the priority date.
After the labor certification application is approved by the DOL, it should be submitted to the Immigration service with an I-140, Immigrant Petition for Alien Worker.
The employer must hire the foreign worker as a full-time employee;
There must be a bona fide job opening available to U.S.workers;
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Process for filing:
Application: The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the foreign worker's qualifications.
Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
The employer must recruit under the standards for professional occupations set forth in 20 CFR 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 20 CFR 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 that is specified for such occupations.
The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying officer requests it.
Retention of records: The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
The electronic online permanent system requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System.
Approvals: If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer and the attorney who submitted the application.
Immigration & Naturalization Service (INS): Upon receipt of the certified Approval from DOL, an Immigration Petition for Alien Worker, Form I-140 must be submitted to the INS. The petition must contain the following:
Upon the receipt of the Notice of Approval , we file the Form I-485 Adjustment of Status package with the Immigration & Naturalization Service (INS) . When that is approved, the person is notified by mail and goes to the INS to get his passport stamped " legal resident" while his "green card" arrives by mail.
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