PERM Labor Certification

///PERM Labor Certification
PERM Labor Certification 2010-05-12T04:23:48+00:00

Certain categories for Green Cards (Permanent Residency), such as those in the EB-3 classification may be required to process through Department of Labor’s (DOL) Labor Certification process. The labor Certification process in these cases is a prerequisite to filing with the Immigration Department. In other words, the approved Labor Certification is required before the case can be filed with USCIS.

The Labor certification is a tool the DOL uses to require employer’s to test the job market and in doing so satisfying the DOL’s requirement that the offered job to the foreign national is not interfering in a detrimental way with the U.S job market. On March 28, 2005, the DOL announced that all further Labor Certification applications must be conducted under their new process known as PERM.

PERM allows employers to file labor certifications online. The employers will not need to submit supporting documentation with the cases and will instead retain the documents for inspection in case of an audit.

Can cases be converted to PERM?
Yes, pending cases can be converted to PERM, however they will have to meet certain requirements. If not the case will be considered new. A new case can still be filed under PERM but will have a new priority date.

Is recruitment the same as it was under previous methods such as RIR?
No. PERM has brought with it new requirements for recruitment. These requirements include a required advertisement in two Sunday edition major newspapers.

How will cases be submitted?
Either by mail or online.

How much faster will Perm be compared to current processing?
Under current traditional Labor Certification processing the process can take 5 years or longer. Under RIR processing the Certification will take 2 to 3 years in California and most large cities. In smaller States RIR is taking one year.

The PERM process will take 45 to 60 days and in many cases faster.

Status: Section 245(i)
Applying for Permanent Residence when you are Out of Status

Important update regarding Section 245(i)

The President has signed the “LIFE” Act into law. This new law extends Section 245(i) to those out of status Aliens wishing to apply for Permanent Residency in The United States.

The new Section 245(i) law allows those individuals who are out of status or illegally present in The United States to apply for permanent Residency (Green Card) without the need to return to their home country. The Alien must show that he or she was physically present in the United States the day the Law was signed by the President, December 21, 2000. The Alien must file for Permanent Residency by April 30, 2001.

Important key points include:

The Alien qualifies under Section 245(i) as long as he or she “FILES” a green card application by April 30, 2001. An approval by this date is not required.

The Alien will have to pay an additional $1,000.00 penalty to the INS. This penalty will not be due until the adjustment stage of the application. The adjustment stage may be many years, depending on the type of case.

The alien Does qualify under Section 245(i) if a Family or Relative based petition is filed on his or her behalf before the April 30, 2001 deadline. Therefore, even though a sibling United States Citizen petition may take 10 years for some countries for Adjustment, the filing of this petition before the deadline will grandfather the Alien sibling for adjustment when the priority date comes about 10 years later.

The alien may “transfer” his or her petition to another category if that category becomes available. For example, a sibling United States Citizen petitions her Alien brother before April 30, 2001. The brother may legally wait inside the United States for his priority date to become current (this may take 10+ years). However, four years down the road the brother finds an employer who is willing to sponsor him for a green card under Labor Certification. This sponsor may petition the brother via Labor Certification and the brother will be allowed to adjust, as he would be grandfathered under the 245(i) law.

An alien qualifies for Section 245(i) where a permanent petition is filed with The Immigration and Naturalization Service or The Department of Labor for a Business petition, Family/Relative Petition or Religious Petition.

It is important to note that those individuals, who file a Permanent Resident petition with The INS or Department of Labor prior to January of 1998, also qualify under Section 245(i) for adjustment. Further consultation with an Attorney is always advisable before making any decisions regarding a Section 245(i) application.