加拿大华人论坛 美国留学移民(分享)关于PERM(Labor Certification)的32个问答题

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by Victoria Chen, J.D.(陈品瑞律师法律博士)Q1:What is a labor certification?A: Foreign persons who have been offered permanent employment in the U.S., and who do not meet the criteria for exemption from labor certification, must obtain Alien Employment Certification, commonly referred to as labor certification from the U.S. Department of Labor (DOL). A permanent labor certification issued by DOL allows an employer to hire a foreign worker to work permanently in the United States.Q2:Who needs a labor certification?A: In most cases under the EB-2 and EB-3, the employer must obtain “labor certification “ from the DOL for the foreign national.Q3:When is the filing date and what does it mean?A: The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date for I-485 filing.Q4:What standards are used in making labor certification determinations?A: The determinations are based on:a. Whether there are not sufficient U.S. workers who are able, willing, qualified and available for the position and/orb. Whether the employment of a foreign person will adversely affect the wages or working conditions of U.S. workers similarly employed; andc. Whether the employer has met the procedural requirements of the regulations.Q5:Who are “lawful U.S. workers “?A: “Lawful U.S. workers “ include U.S. citizens, permanent residents, asylees, and refugees.Q6:What is PERM?A: The DOL (U.S. Department of Labor) streamlined the labor certification process under a system called Program Electronic Review Management (PERM) on March 28, 2005. Now it is encourage that all employers file a labor certification via PERM.Q7:What form should be filed under PERM?A: Employers applied for a labor certification under PERM after March 28, 2005 must file new ETA Form 9089 under the new PERM regulation.Q8:Where should an employer file an application?A: An employer should file an application directly with DOL.Q9:What should be included in ETA Form 9089?A: A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker's qualifications. In addition, the employer is required to include on the ETA Form 9089 the NPWC provided information: the prevailing wage, the prevailing wage tracking number, the SOC code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.Q10:Any restrictions on offered wage?A: Yes. The offered wage must be at least 100% of the prevailing wage. No deviation is acceptable.Q11:Can the determination of prevailing wage bycertifying officer in State Workforce Agency be reviewed?A: Yes. A request to review the determination can be filed within 30 days of the determination.Q12:How should an employer set requirements for a job position in ETA Form 9089 filing under PERM?A: An employer should be careful when setting minimum requirements for the job position. The requirements must be normal to the occupation and not more than the worker possessed when hired for the position. Nor can the requirements be tailored to the foreign worker's specific skills and qualifications.Q13:May an employer set job requirements which are not customarily required for the occupation in the U.S.?A: Yes. But the employer must adequately documented as arising from business necessity.Q14:How long should supporting documents be retained?A: An employer should retain supporting documents for five years.Q15:When must the application be signed?A: Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer, if applicable, when they are received by the NPC. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.Q16:What is the procedure to file electronically under PERM system?A: First of all, an employer has to register on PERM online.Second, prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the National Prevailing Wage Center (NPWC).Third, an employer has to complete mandated recruitment steps (discussed later) before filing an application on PERM.Forth, the employer may electronically file Form 9089,attesting that it has undertaken the necessary recruitment under PERM as well as attesting to various other requirements within 180 days from the earliest recruitment step.Fifth, the PERM system will automatically accept or deny the application. As part of the initial review of the application a sponsorship check will also be conducted under which DOL personnel will contact the employer by email or by phone to make sure they are offering a job to the foreign worker.Sixth, even if the application is not denied by the system, the DOL may select an application for an audit or for supervised recruitment and it would exercise this scrutiny for both problematic and random applications.Lastly, provided an application has not been selected for audit and the sponsorship check is completed, the application is sent to an analyst for final review. The analyst conducts a final check to determine that the application contains no errors or inconsistencies and that there are no issues that warrant an audit. If there are no rule violations and no issues warranting issuance of an audit letter, the application will be certified and returned to the employer by the DOL analyst and a labor certification will be issued.Q 17: Where should an employer choose to file by mail send an application?A: Employers can submit paper applications to the Atlanta NPC. The address and contact information are provided on DOL Contact Information page.Q18:What may cause an application be automatically denied by the PERM system?A: In certain circumstances, the PERM system will deny the filing automatically without an adjudicator's review. These are common reasons:a. the prevailing wage determination obtained from the SWA has expired;b. the job order placed with the SWA did not run for thirty days;c. the application is submitted less than thirty days from the end of completion of the job order, job posting, or last recruitment step; ord. the application listed recruitment in the ETA Form 9089 that took place outside the 180-/30-day recruitment period.Q19: Need supporting documentation be filed with the ETA Form 9089?A: Supporting documentation may not be filed with the ETA Form 9089. But the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.Q20: What triggers an audit?A: DOL refuses to reveal audit criteria to retain the flexibility of changing audit criteria.Q21:How long does the PERM process take?A: If the application is not audited, it generally gets approved within 3 months. Many applications have been selected for an audit resulting in delays of over two years. Although PERM was designed to streamline and expedite labor certification, the program has once again been mired by delays and backlogs especially if a case has been selected for audit.Q22:What are mandated recruitment steps?A: An employer is required to place two Sunday advertisements for the position. For professional positions, the employer has to conduct three further recruitment steps. The employer also needs to place a 30-day job order with the State Workforce Agency (SWA), as well as obtain a prevailing wage determination from the SWA. Furthermore, the employer has to internally post a job notice for 10 days. Furthermore, previously qualified laid off workers by the employer must be considered if the application is being filed within 6 months of the lay off of a qualified worker in the same or related occupation.Q23: When should mandated recruitment be conducted?A: Mandated recruitment must be conducted more than 30 days and less than 180 PRIOR to filing.Q24:What is a test of the labor market?A: A test of the labor market is required when applying for labor certification. It is done through newspaper advertisements and other forms of recruitment, along with an internal posting and a job order on a DOL job site. Any responses to the recruitment must be evaluated carefully and in good faith. The employer can reject applicants only for lawful, job-related reasons.Q25: How does an employer determine whether to advertise under the recruitment regulations for professional occupations or unprofessional occupations?A: The employer must recruit using the standards for professional occupations if the occupation involved is on the list of occupations published in Appendix A to the preamble of the final PERM regulation. The occupations listed have been deemed to be professional occupations, as they normally require a bachelor's or higher degree. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Employers are not prohibited from conducting more recruitment than is required by the regulations.Q26: Can a decision of denial or revocation of a labor certification be appealed?A: Yes. If a labor certification is denied or revoked, an employer can request a review of the decision by submitting a written request to Board of Alien Labor Certification Appeals (BALCA).Q27:What does getting a labor certification mean? Can a foreign national start to work after a labor certification is obtained?A: A labor certification is only a first step in the permanent resident process to obtain the “green card. “ After the labor certification application is certified by DOL, it should be submitted to the USCIS service center with a Form I-140, Immigrant Petition for Alien Worker. The foreign national needs to file I-485 to adjust status. Only after all these steps can a foreign national obtain a green card and start to work.Q28:How long is a labor certification valid?A: The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.Q29:Can an approved labor certification be revoked?A: Yes. Certifying officers have the authority to revoke approved certifications in the case of fraud, misrepresentation, obvious errors or for grounds or issues related to the labor certification process.Q30: Are there any ways to expedite the labor certification process?A: Yes. Physical therapists and professional nurses have been exempted from most of the labor certification requirements under Schedule A. Also, certain persons of exceptional ability are exempted from labor certification.Q31: Can Labor Certification be Avoided Altogether?A: Yes. A labor certification is only required for individuals applying under the EB-2 and EB-3. Individuals who qualify under the EB-1, EB-4 and EB-5 do not require a labor certification. Applications requesting a waiver of the job offer requirement in the national interest under the employment-based second preference also do not require labor certification.Q32: What is the application fee of PERM?A: There is no application fee of PERM.http://www.wegreened.com/PERM_FAQs.html#Greencard

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