Labor Certification

Labor Certification Step One: PWD Request

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As the first step in the PERM process, your employer makes a “prevailing wage request” to the U.S. Department of Labor (DOL) .The prevailing wage request provides the DOL with information about the offer such as job requirements, job duties, and the worksite location. The DOL uses this information to issue the employer a prevailing wage determination (PWD), stating the common wage for the specific job position in the specific worksite location.

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The PWD is an important aspect of the PERM process, because immigration law requires that employers pay foreign workers at least the prevailing wage for the worker’s position. PWDs can vary greatly based upon the geographic location of the job. For example, the PWD for an attorney working in metropolitan New York is going to be very different from the PWD for an attorney working in rural Texas. Employers must provide the correct worksite location on the prevailing wage request to ensure that the DOL gives the employer the accurate PWD

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Labor Certification Step Two: Placing Ads and Recruiting

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The next recruitment step is especially critical, as the entire point of the PERM process is to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job opportunity. Your employer must conduct “good faith” recruitment, which means the recruitment must be genuinely calculated to attract any available U.S. workers.

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For PERM, there are three mandatory advertisements. Your employer must place an advertisement with the state workforce agency in the state of intended employment.

For instance, let’s say your employer is located in Virginia, but the job opportunity is located in Maryland. Your employer must place the advertisement with the Maryland state workforce agency, since that is the area of intended employment.

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Additionally, your employer must place newspaper advertisements on two different Sundays. The newspaper must be the major newspaper of general circulation in the area of intended employment. In the above example, a good choice for the newspaper would be the Washington Post.

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Along with the mandatory advertisements, your employer must also place three other advertisements and post a notice of the job opportunity at the worksite location.

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It is usually recommended that employers place all of the advertisements at the same time (or close to the same time) if possible. The reason for this is that all of the advertisements must be less than 180 days old at the time of filing the PERM application. If one of the advertisements is older than 180 days, that ad cannot be used for the PERM, and the employer will need to place another ad before filing the PERM.

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For example, let’s say the employer received the PWD on January 1, 2013, and placed the ad with the state workforce agency, the two newspaper ads, and two other ads in the month of January. The employer does not place the final ad until October 1, 2013. The employer will not be able to use the January ads for the PERM because they will now be more than 180 days old. The employer will then have to place all of those ads over again, which could lead to serious delays in the green card process.

Labor Certification Step Three: Filing ETA Form 9089

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After the advertisements are complete, your employer will file the PERM application with the DOL using ETA Form 9089 (provided no qualified and willing U.S. workers applied for the job position). Just like with the prevailing wage request, your employer files this form electronically at the DOL. The ETA Form 9089 again provides the DOL with information on the job opportunity (such as the worksite location, duties, requirements, and prevailing wage), information on the employer’s recruitment process (such as where the employer placed the ads and on what dates), and information on the foreign worker (such as the worker’s place of birth, education credentials, and work experience).

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After filing the ETA Form 9089, you will wait several months for the DOL to adjudicate the PERM. The DOL can (1) approve the PERM (2) deny the PERM or (3) audit the PERM. If your PERM is audited, the DOL will ask your employer to provide additional evidence for the application. After your employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.

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After receiving the approved PERM, your employer can move on to the next big step of the process, which is filing an I-140 visa petition on your behalf with U.S. Citizenship and

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n order to sponsor a foreign worker for a U.S. green card, a U.S. employer must complete the I-140 Immigrant Petition for Alien Worker (“I-140 petition”). The U.S. employer files this petition with U.S. Citizenship and Immigration Services (“USCIS”).

Although hundreds of thousands of I-140 petitions are filed and approved each year, an employer who is new to this process may make mistakes that could jeopardize the petition or even result in its denial. This article covers the specific portions for the I-140 Form, what documents the employer should include with the petition, and how the employer submits the petition to USCIS.

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COMPLETING THE I-140 FORM

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The current version of the I-140 form is divided into nine parts. (Periodically, the U.S. government will update/change the I-140 form. Check the USCIS website to make sure that you are completing the most recent version, or USCIS will reject your submission.)

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Employers should carefully complete all parts of the form and remember to double-check that all of the information provided is true and correct.

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Part 1 of the form asks for information about the employer, such as the company name, address, contact information, and IRS Tax Number. Note that certain types of foreign workers do not require an employer sponsor and are able to file the I-140 on their own, and so Part 1 contains space for the alien self-sponsor’s her name and address. An employer sponsor need only provide the employer’s name and address in this section, not the foreign worker’s or that of the person completing the form on behalf of the company.

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Part 2 of the form requires the employer to indicate what type of employment-based classification the employer is asking USCIS to grant to the foreign worker. This classification refers to the employment-based categories of EB-1, EB-2, and EB-3. By the time of filing the I-140 , the employer will already know what classification to ask USCIS for. Nevertheless, this part of the form is especially important because, if the employer asks for the wrong classification by mistake, USCIS will deny the petition.

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Part 3 asks for information about the foreign worker, including the worker’s full name, address, country of birth, citizenship, and U.S. Social Security Number (if any). Part 3 also asks for the foreign worker’s I-94 number and current non-immigrant status (if the worker is already in the U.S.). The employer must be sure to provide the most up-to-date information regarding the worker’s status, the date the status expires, the worker’s I-94 number, and date the worker arrived in the United States. USCIS can check to make sure this information is correct. If it is not, USCIS may deny the petition.

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Part 4 asks for processing information, which refers to other details regarding the foreign worker’s previous and future immigration processing. For example, Part 4 requires the employer to indicate whether the worker will apply for the green card from inside the U.S., or at a U.S. consulate abroad. The employer must also provide the worker’s foreign address.

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Additionally, the employer must indicate whether other petitions are being filed with the I-140 (such as the I-485 green card application), whether the worker is in removal/deportation proceedings, and whether the employer or any other employer has ever filed an I-140 on the worker’s behalf. If other I-140 petitions have been filed on the foreign worker’s behalf, the employer must explain what type (EB-2, EB-3, and so forth), the name of the employer that filed the previous petition, whether USCIS approved or denied the petition, the date of the petition’s submission and approval/denial, and the USCIS receipt number for the petition. If multiple I-140 petitions have been filed for the foreign worker, the employer must provide all of this information for all of the petitions.

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Part 5 requires additional information about the employer, such as the type of business, the date it was established, its gross annual and net annual income, and its current number of U.S. employees. This section also requires information about the labor certification (such as date of filing, date of expiration, and case number) if the employer completed the labor certification process. (If the employer did not complete the labor certification process, simply put “N/A” in these sections). Part 5 also asks for the company’s NAICS code. An NAICS code is a code that the U.S. government assigns to different types of business in accordance with their economic sector. (These codes are used for organizational and statistics purposes). Most IT-related businesses fall under the NAICS codes 541512 or 541511.

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Part 6 asks for basic information about the proposed employment position, including the job title, a layman’s description of the job duties, the worksite address, and the salary. Part 6 also requires the SOC code for the position. The SOC code system is the U.S. government’s system for classifying job occupations (similar to the government’s system of classifying economic sectors with NAICS codes).

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Part 7 asks for the name, date of birth, and country of birth of the foreign worker’s spouse and children. This section also requires the employer to indicate whether the family members are applying for green cards in the U.S. or at a U.S. consulate abroad.

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Part 8 merely requires the employer’s signature, daytime contact number, email address, and the job title of the person signing on behalf of the employer.

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Part 9 is completed by the employer’s immigration attorney (if applicable) and requires the attorney’s name, contact information, and signature.

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WHAT DOCUMENTS SHOULD THE EMPLOYER SUBMIT WITH THE PETITION?

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Every I-140 petition is different, based upon the circumstances of the employer, the type of job position, the immigration classification, and the foreign worker him- or herself. Therefore, an all-inclusive list of supporting documents cannot be provided. However, the following documents are materials that typically have to be included with every I-140 petition:

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• Check or money order for the I-140 filing fee: The check/money order should be drawn on a U.S. bank and made payable to “U.S. Department of Homeland Security” (write it out in full, no abbreviations). Additionally, be sure to make the check out for the correct fee; these amounts can change from time to time. Currently (early 2015), the filing fee for the I-140 petition is $580, but check the USCIS to confirm before filing. (Including an incorrect fee will result in USCIS rejecting the submission.)

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• Signed original approved Labor Certification Application: This ORIGINAL form must be signed by both the foreign worker and the employer, and the ORIGINAL must be included in the I-140 petition. If the original is lost, it can take months to replace and will detrimentally delay the petition.

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• Letter from the employer in support of the I-140 petition: This letter should be printed and signed on company letterhead and affirm that the company intends to employer the foreign worker on a full-time and permanent basis at the stated salary. Typically the letter also includes a brief summary of the foreign worker’s prospective job duties and qualifications (such as educational degrees and previous work experience).

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• Proof that the employer has the ability to pay the foreign worker’s prospective salary (usually in the form of the employer’s most recent corporate tax returns).

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• Copies of the foreign worker’s educational degrees and transcripts, and letters from previous employers confirming the worker’s experience.

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• Copies of the foreign worker’s current visa, I-94, and past I-140 receipt/approval notices (if applicable).

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WHERE SHOULD THE EMPLOYER FILE THE I-140 PETITION?

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On its website, USCIS provides the exact addresses where employers should mail I-140 petitions. The correct address depends on the circumstances of the petition, such as whether the employer is mailing the petition via courier service or U.S. Postal Service, whether the I-140 is being concurrently filed with the I-485 application for adjustment of status, and other factors.

It is very important to file the petition to the right address; failure to do so can result in USCIS returning the petition to its sender.

For example, let’s say a U.S. employer is filing a standalone I-140 petition (without any other accompanying petitions) and using FedEx to mail it. Per the USCIS website, the correct address for these circumstances is:

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