Alan Lee Speaks on Immigration to United Chinese Association of Brooklyn on May 15th Concerning L-1A Intracompany Transfers, EB-5 Investment, and PERM Labor Certifications. (Part 3)By Alan Lee, Esq.† [This is the third of a three part series covering Alan Lee speech before the Chinese United Association of Brooklyn. Part 1 concerning L-1A intracompany transfers was published here on June 3rd, and Part 2 on EB-5 investments on June 6th. Part 3 is focused on PERM labor certifications.] PERM Labor Certification Processing Beginning March 28, 2005, the U.S. Department of Labor (DOL) instituted the Program Electronic Review Management System (PERM) and this is now the only way by which labor certification applications filed on or after that date can be issued. PERM is different from previous methods of labor certification, as it is a more complex filing than either of its predecessors. From the 1970's until the 1990's was what we called traditional recruitment (TR). The process involved filling out the labor forms ETA 750A & B and submitting them and later upon receiving notice from the local department of labor, performing limited recruitment through generally advertisement(s), notice of posting, and going through a job order at the state level. When the time for labor certification processing started exceeding multiple years, DOL switched to reduction in recruitment (RIR) in 1997 in which the recruitment efforts of posting and advertising were done before submitting the case and the employer requested a reduction of any further recruitment efforts. When RIR cases started hitting five years, DOL began thinking of an automated process to reduce times, which we now know as PERM. Current PERM times are acceptable if the case passes on initial inspection. For a first review, DOL is currently at two months; for audited cases in which DOL asks for further information, approximately sixteen months; for requests for reconsideration, one year and eight months; and cases in which the Government committed error are current. PERM is a cooperative process among employer, attorney and applicant. All labor certification applications must be preceded by an online prevailing wage request on Form 9141 to the National Prevailing Wage Center of the Department of Labor and the result must be submitted as part of the PERM Application (Form 9089). Both forms can be accessed through DOL's iCert portal at "http://icert.doleta.gov". Before asking for a prevailing wage determination, lawyers who are conversant with labor certification processing should have a fair idea what the wage is going to be. There's no point to submitting a wage request if the job is worth $50,000 or so to the employer but the prevailing wage will be almost $100,000. Let me give you an example through our next slide, Appendix C. Appendix C is a worksheet that the DOL provides for people to figure out what the wage is going to be using the Occupational Supplement Statistics or OES system. Each point that you acquire bumps up the wage one level. We'll take the case of a computer programmer in New York. Under the OES online wage library which can be accessed at "flcdatacenter.com", a Level 1 wage (entry level) is $50,752. The Level 2 wage is $65,582 a year, Level 3 $80,392 a year, and Level 4 $95,222. The specifications of the data center indicate that the education and training code is for a bachelor's degree and that the number of years of experience can be 2 but less than 4. The worksheet already gives you one point to start and so the idea is not to collect another if the employer is only willing to pay in the $50,000 range. The requirement should also be based upon the employer's normal requirements for the position. If the required experience is two years, that would not engender a point in step 2 of the worksheet. The education level of a bachelor's degree would not give you a point in step 3. As long as there are no special skills for step 4, licensure or certifications for step 5, or supervisory duties for steps 6, the sum total points would be 1 and the wage should be Level 1. Let me just point out one other thing concerning the visa chart and requirements for positions. Everyone doing a labor certification application would rather be in the employment second category than the employment third. But just because you have a master's degree or a bachelor's degree plus five years of progressive experience does not mean that you can move up into the employment second category automatically. That depends upon the employer's requirement for the position, and whether the employer's requirement is realistic as seen by the Department of Labor. Of course, in a close case, you will always prefer to have your client in the employment second category. But where it is abundantly clear that the client would only meet grief, the client should go into the third category. Now, before the Form 9089 is submitted, the employer must also conduct recruitment (if such was not already been done in the 180 day period before filing), keeping records of the outcome and attesting to the results of the recruitment in the filing. Professional positions (usually requiring at least a bachelor's degree) need at least 6 steps of recruitment while non-professional positions require 3 or 4. Recruitment must be completed not less than 30 days and not more than 180 days prior to filing the application. The only exception in a professional case allows 1 of the 3 extra recruitment steps to be completed within the 30 days period. An employer must place a job order with the state workforce agency (SWA), place an ad for 2 Sundays in the newspaper with widest circulation in the area of intended employment, post the position for ten business days within its establishment and, if there is in-house media, place the notice of job availability in the media if that is the normal recruitment procedure of the employer. For professional positions, the employer must conduct at least 3 additional forms of recruitment. Under item B of our next slide titled "Prior recruitment under PERM", the 10 types of recruitment are
Employers should be clear as to who will interview applicants for the position and who is authorized to sign the application. Please note that under PERM, employers have the option of mailing in the 9089 application or submitting an on-line application. The advantages of on-line filing are faster determination, on-line case status tracking ability and less chance of initial rejection for errors in filling out the form. We strongly encourage this method. DOL's rule since July 16, 2007, restricts the payment of fees and expenses associated with the labor certification portion of an employee's permanent residence case to the employer alone. Assuming that you have passed the PERM process and received a labor certification, the next step in the process following the labor certification approval is the I-140 petition. The employer must verify with U.S. Citizenship and Immigration Services (U.S.C.I.S.) what preference classification it wishes to apply for the alien, that the applicant is qualified for the position requested, and that the organization has sufficient resources to pay him or her, the amount of salary designated on the labor certification. (The employer must submit proof of financial viability, usually in the form of the organization's tax returns). Following I-140 approval (or concurrently with the I-140 filing), the beneficiary can file to adjust status to permanent residence in the United States (Form I-485). The beneficiary can also seek consular processing for the immigrant visa. This short summary of permanent residence processing through labor certification hopefully answers some of the questions which you may have concerning the steps which must be taken and the timing involved in the processing. This also concludes our formal presentation today. Correction Note: Mr. Lee wishes to correct an error on the 1st section of this series which focused on L-1A intracompany transferees and the steps under which their companies submit I-140 petitions to U.S.C.I.S. I-140 petitions are no longer directly submitted to the service centers, but are filed at the Dallas lockbox of U.S.C.I.S. where receipts are generated, upfront processing performed, and the cases then distributed to either the Texas or Nebraska Service Centers. The Dallas lockbox address for U.S. Postal Service deliveries is: U.S.C.I.S. For courier deliveries: U.S.C.I.S.
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2011 Alan Lee,
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