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Labor Certification and PERM

If you are a company wanting to hire foreign nationals in a permanent position, the Labor Certification process is an important track toward a Green Card.

The Labor Certification is an application with the Department of Labor to determine if there any US workers willing and able to fill the position for which an application has been filed. If it is determined that the position can’t be filled by doing a Labor Market test, the employer can file an immigrant petition for the foreign national. There is no filing fee for a Labor Certification Application.

Congress decided that occupations on Schedule A, such as professional nurses and physical therapists have a presumed shortage. Congress also created a Schedule B for jobs that according to Congress can be filled by US workers. Congress mandated that Labor Certifications cannot be issued for these occupations. Schedule B contained over 30 occupations and included jobs like guards, yard workers, kitchen workers, housekeepers and janitors. Schedule B effectively eliminated the possibility for lower paid foreign nationals to obtain a green card through the Labor Certification process.

The Labor Certification process has been backlogged for many years (Department of Labor states a backlog of over 300,000 applications). The process could easily take three years to complete, after which an immigrant petition could take another one or two years. Congress has recognized that the system is taking too long to and isn’t very beneficial to companies and workers who want to move forward with staffing and career planning. Congress therefore has proposed a major overhaul of the process to make it all better.

On March 28, 2005 a brand new system will take effect. It is called PERM (which stands for Permanent Foreign Labor Certification) and allows companies to file an application electronically. Instead of adjudication on a regional level, these applications will be adjudicated in two new national processing centers. There is no filing fee - for now at least.

The idea is that this paperless procedure will reduce processing time to 60 days or less. However, the Certifying Officer has the discretion to audit an application and demand further supervised recruitment efforts and the criteria to determine higher scrutiny are not known. The result could be a lengthy process for these cases under supervision. Also, Congress decided to do away with Schedule B, opening the process to applications on behalf of millions of people who haven’t been able previously to file a labor certification. Finally, people who never had a chance to get a green card through employment, now find themselves able to become an applicant. We will have to wait and see how this will influence processing times.

PERM as a whole will benefit those companies who can show ongoing recruitment and hiring. It will also benefit those occupations for which advanced degrees are required. However, applications filed by small businesses that don’t usually hire lots of people might be scrutinized more thoroughly and for those companies the process may take longer. Moreover, because of the elimination of Schedule B, millions of workers will take their chance in filing a labor certification.

As with all new programs, we expect that government will commit to its processing time of less than 90 days. Over time the program might get bogged down again. But we suggest that you be first in line, so chances are that the system still operates as it is designed to operate

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Other Immigration Topics:
  Being transferred to the United States, Intracompany Transferees (L-1's)  
  Free Advice or Nightmare  
  Getting a Social Security Number  
  Immigrant Intent  
  Labor Certification and PERM  
  Secure America and Orderly Immigration Act of 2005  
  Talented Specialty Workers with a Bachelor Degree (H-1B)  
  To invest is a long short-term affair (E-2)  
  USCIS Immigration Benefit Application Fees  
  You want to work in the US, but how? Here are some answers...  

We hope you find this information helpful. If you have any immigration questions, please contact David Asser, either by phone at (602) 228 9773 or e-mail at david@asserlaw.com. You can also visit the website at www.asserlaw.com


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