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EB-2 PERM Labor Certification

Law Offices of Yu & Associates


What Is EB-2 PERM Labor Certification?

EB-2 is an employment-based petition for permanent residency for "members of the professions holding advanced degrees" and individuals "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States." An Advanced Degree Professional is someone with an advanced degree (Masters or Ph.D.) or a baccalaureate degree and five years experience in a profession. An Alien of Exceptional Ability is a scientist, artist or businessperson with ten years experience in his or her field, exceptional achievements or recognition in the field, or other evidence of exceptional ability.

What Is the Procedure For Filing an EB-2 PERM Petition?

The EB-2 petition is filed on behalf of the applicant by his or her prospective employer. Before filing with U.S. Citizenship and Immigration Services, the employer must first obtain employment certification for the applicant and a prevailing wage determination from the state department of labor.

What Is Labor Certification?

Labor certification is required for an EB-2 petition. This is a process that demonstrates that there are no 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 alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

How Does the Employer Show that There Are No Qualified U.S. Workers Available?

During the labor certification process, the employer must undertake recruiting efforts in order to prove that there are no U.S. workers available to fill the position. The recruitment must be done within 6 months but no less than 30 days before the filing for foreign labor certification. There are three mandatory recruitment steps which must be undertaken by the employer plus several optional steps from which the employer should choose at least three.

The employer must prepare a recruitment report detailing the steps taken and demonstrating that there are no willing or qualified U.S. workers available to fill the position. This report does not need to be submitted with the employment certification application, but the employer must sign it prior to filing the application and may be required to submit it in case of an audit.

What Are the Mandatory Recruiting Steps?

The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days before the filing of the application of Labor Certification.

  1. Advertisements in Sunday Newspaper or Professional Journal

    The employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads.

  2. Job Order Placed with State Workforce Agency for 30 days

    The employer must place a job order for the position with its local SWA through SWA Job Bank (online) for 30 days.

  3. Internal Posting Notice

    The employer must post a notice about the job opportunity for 10 consecutive business days in conspicuous places at the location of employment (e.g. bulletin boards, break or copy room). The notice should include the wage offered, job description, working hours, contact personí»s name and address, the address of the appropriate DOL office, a statement notifying individuals that an application for permanent alien labor certification is being filed, and other elements as required by DOL regulations. Additionally, the employer must provide notification through any and all in-house media of the position if the employer would normally do so for similar positions.

What Are the Optional Recruitment Steps?

In addition to the three mandatory steps, the employer must undertake at least three of the following recruiting steps:

  1. Participate in job fairs.
  2. Place an advertisement on the company website.
  3. Post the position on a job search site.
  4. Conduct on-campus recruiting.
  5. Advertise with trade or professional organizations.
  6. Employ a private employment firm or placement firm.
  7. Implement an employee referral program with incentives.
  8. Notify campus placement offices of the job opportunity.
  9. Advertise in local or ethnic newspapers.
  10. Place ads on radio or TV.

What Are the Requirements for the Advertisements?

The advertisements used for the PERM process should include:

  1. Employerí»s name;
  2. Description of the vacancy listing job duties and specific skills, knowledge and experience required for the position which are specific enough to apprise potentially qualified applicants of the job opportunity;
  3. Geographic area of employment (detailed address does not need to be included);
  4. The means to contact the employer.

The wage or salary that will be paid to the employee does not need to be included in the advertisement. If a wage rate is included, it cannot be lower than the prevailing wage rate, which is the minimum wage for the offered position as determined by State Workforce Agency.

It is very critical that the job description in the advertisements matches the job description given on the forms submitted to the Department of Labor.

If the Education Requirement for My Position is a Masterí»s Degree, and This Exceeds the Minimum Requirement for the Position Set by DOL, Will It Trigger an Audit?

It is possible. The DOL may request the employer to submit documentation demonstrating the business necessity of a master's degree applicant. That means the employer must be able to demonstrate that there is a genuine need for such a highly qualified employee to fill the proposed position.

How Can the Employer Prove It Has the Ability to Pay the Prevailing Wage to the Applicant?

The employer must demonstrate the ability to pay the prevailing wage to the foreign applicant once he or she has received a green card. This does not necessarily mean that the employer has to demonstrate a profit; the employer can also use assets to demonstrate the ability to pay the required wage.

Can the Job Description Require Proficiency in a Foreign Language?

Yes, however foreign language ability cannot be used as a job requirement unless there is a legitimate business need for language ability.

If My Employer Undergoes a Merger or Buyout, Can I Still Continue the Immigration Process?

Yes. An EB-2 employment-based petition may continue even if the employer undergoes a merger or buyout. If the new company acquires all the interests of the original company, that is, all its benefits (assets, account receivables, intellectual properties, contracts rights) and liabilities (debts, contract obligations, account payables), then the new company is also responsible for the immigration liabilities of the original company and can continue to sponsor the EB-2 applicant.

How Long Should the Employer to Retain All Documentation Relating to the Petition?

Five years from the date the application was filed by the employer.

What Are the Remedies In Case of Denial of the Labor Certification Application?

If the employment certification application is denied and the employer believes it was due to a system error or misjudgment of the part of a DOL officer, the employer can file a motion to reconsider with the DOL process center that made the decision or file an appeal with the Board of Appeal of Labor Certification Application (BALCA). This must be done within 30 days of the date of denial.

What Will Happen if the DOL Certifying Officer Orders Supervised Recruitment?

If the DOL Certifying Officer (CO) orders supervised recruitment, then the employer must undertake recruiting again under the supervision of the CO. The employer will be required to place an ad in a newspaper of general circulation for three days including a Sunday or for one edition of a professional, trade or ethnic publication. The ad must be approved by the CO and must direct applicants to send resumes or applications directly to the CO. Other recruiting efforts may also be required. The employer must then submit a detailed recruitment report within 30 days of the COí»s request.

 

The above is intended as a general introduction and should not be construed as legal advice or legal opinion for your particular case. Please contact the Law Offices of Yu & Associates with any specific questions. Tel: (301) 838-8986, Email: syu@yulegal.com, Address: 110 N Washington St., Suite 328E, Rockville, MD 20850.



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