PERM (Employment Based)
FY 2020 PERM or Employment Based Permanent Residency
We are providing this information to your company because you have executed a PROFESSIONAL SERVICES PERM AGREEMENT with our company.
A non-immigrant visa is intended for an individual to come into the USA for a temporary period of time for travel, work or business and then to return to their home country.
An immigrant visa is intended for an individual to come to the USA and stay permanently. This is often referred to as “obtaining a green card” because years ago the immigrant visa was green in color. Now the visa is multi-colored, updated and changed on a regular basis to keep ahead of the counterfeiters. But it is still often referred to as a “green card”. We will refer to it as Permanent Residency or PERM.
PERM status can be obtained through family relationships (marriage, adoption, etc.) or through employment opportunities. Our agency is able to assist with both types, but in this document we will only address Employment-based PERM cases.
There are a limited number of employment-based PERM immigrant visas available each year and they are divided up among different classifications of employment as well as among different countries of origin. Although we are able to assist with all classes of employment-based immigrant visas, in this document we will focus on what is known as the EB3 category, which is intended for an individual capable of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, and for which qualified workers are not available in the USA.
An employer may have positions that are temporary and seasonal in nature, may hire H- 2 workers for those positions, but may also have full time, year-round, positions that are not temporary and seasonal for which a PERM immigrant visa might be appropriate.
The PERM process is not cheap, quick or easy. If you are able to staff your business with qualified US Workers you should always give preference to those US Workers and only contact us about the PERM process for foreign workers if you have chronic full- time, year-round staffing shortages that you are unable to fill despite your aggressive recruitment efforts.
It is likely to take up to 2 years (and in some instances more), with filing time frames dependent upon the number of petitions received by USCIS, the shifting regulatory and political framework, and timing on when each step in the process is started and is completed. We have no control over the filing timelines. We will work with you to make the process as quick and efficient as possible.
As part of the PERM application process, the employer must attest that:
- The position is full time;
- The position is a bona fide job offer available to US Workers;
- Job Requirements are not tailored to the alien worker’s qualifications. The jobopportunity must be without restrictive job requirements, unless adequatelydocumented as arising from true business necessity;
- The offered wage must meet prevailing wage requirements (equal or greater thanthe prevailing wage for the occupation in the area of intended employment, asassigned by DOL).
- There are no US workers able, willing, qualified and available to accept the joboffer through the specific recruitment process; and
- Employment of the alien will not adversely affect the wages and workingconditions of US Workers.The prospective foreign worker/employee who benefits from the application must attest to the following.
- He/she meets the educational and work requirements of the employment position at the time the Labor Certification is filed; and
- He/she maintains a valid legal status in the US while present in the USA. In addition, the prospective foreign worker/employee who benefits from the application must be eligible to be granted the status.
If the prospective foreign worker/employee has had past crimes or immigration violations, then the individual may be inadmissible.
- If she/he has a communicable disease, does not have vaccinations or complete vaccination records, or other physical or mental health issues, then the individual may be inadmissible.
- If she/he is likely to become a “public charge”, meaning they would be using government benefits such as welfare, food stamps, housing assistance, etc., then they may be deemed inadmissible.
- If the individual is a drug abuser, addict, trafficker or engaged in terrorist acts, they may be deemed inadmissible.Some of the issues may be able to be resolved, but some may not.You must be very selective and careful. Really know the prospective foreign worker/employee beneficiary prior to starting the process. There is no guarantee that an individual who has been issued an H-2 visa in the past and has been admitted to the USA would not be barred from entering the US on a PERM visa due to new information or a change in the regulatory standards. However, prior H-2 visa issuance is a good indicator that the individual would be deemed admissible. Timing is very important, because the filing of an immigrant petition might bar an individual from receiving a non-immigrant visa (H-2) while the immigrant petition is pending.
COLLECTING INFORMATION ON YOUR COMPANY AND EACH BENEFICIARY
We will need to set up a client file for your company, collecting data that would be required for the filing process. This process is ongoing throughout the entire PERM filing and is a one-time charge per company, not per beneficiary.
We will also need to set up a file for each named beneficiary, and once again, this will be ongoing throughout the entire PERM Process.
DEFINING YOUR JOB AND JOB REQUIREMENTS
You need to take the time to carefully write the first draft of the job description that will be utilized. The final job description will be used to determine prevailing wage, will be advertised to recruit US Workers, and the foreign worker that is selected must be able to fulfill all the requirements of the job description.
- Job Title: Make your job title specific, avoid lingo that may confuse.
- Job Summary: Overview of your company and expectations for the position.
- Responsibilities and Duties:
- Core Responsibilities: be detailed but concise, and emphasize the duties that my be unique to your organization.
- Highlight the day-to-day activities of the position.
- Specify how this position fits into your organization.
- Qualifications and Skills: Specify education, previous job experience, certifications, licenses and technical skills required for the role. Keep your list concise.
- Other special requirements or preferences: Does the work involve travel? Working on a variable schedule or under any special circumstances?
You will need to provide evidence/explanation for each qualification and/or requirement for the job as well as evidence that the potential alien beneficiary meets or exceeds experience requirements for the job prior to being first hired by you.
We will work with you to review and refine your draft, focusing on the production of a final job description and qualifications that will be compliant and valuable throughout the entire PERM process. You will review and sign off on the final job description, qualifications and requirements.
SUBMIT REQUEST TO US DEPARTMENT OF LABOR FOR PREVALING WAGES FOR YOUR JOB AND JOB REQUIREMENTS.
Once you have signed off on the final language of the job description, we will submit this to the Department of Labor. It typically takes 90 days from the date the request is submitted until the Prevailing Wage is issued.
COMPILE ADDITIONAL DOCUMENTS ON EMPLOYER AND BENEFICIARY.
While the Prevailing Wage is pending, we will continue working with your company on additional information required for the PERM application.
We will review with you the client and worker profile that had been submitted. You will need to provide us with:
- Copies of the last two years of your business’ tax returns and/or audited financial statements.
- Copies of the worker/beneficiary’s last three years of U.S. federal (and state) income tax returns (if the worker/beneficiary had been employed in the USA).
- Clear, clean copy of the worker/beneficiary’s passport. All pages with printed information and/or visas and/or entry/exit stamps. All pages except blank pages.
- Copies of the worker/beneficiary’s past three years of visas.
- All evidence of the worker/beneficiary’s education, training and/or experience.
- Proof of the worker/beneficiary’s prior employment.
- Official Birth Certificate of the worker/beneficiary in native language.
- Official Marriage Certificate of the worker/beneficiary in native language (if any).
- Official Birth Certificates of the worker/beneficiary’s spouse & children (if any) in native language.
EMPLOYER CREATION OF PLC EMPLOYER PORTAL, AGENT SUB ACCOUNT and RECRUITMENT EMAIL ACCOUNT.
JKJ Workforce will work with you to establish a dedicated email account for use with the PLC Employer Portal, Agent Sub-Account and Recruitment Activities. These are processes that you as an employer must legally perform, but we will walk you through the process.
RECRUITMENT FOR US WORKERS.
After the Prevailing Wage is received, JKJ Workforce will guide you through the 60- day recruitment process. Once again, this is something that you as the employer must legally perform: You must make a concerted effort to hire domestic workers prior to filing your PERM application, which includes:
- Open a 30-day job order with your State Workforce Agency (SWA).
- Place employment advertising in the newspaper as per the regulatoryrequirements.
- Post a “Notice of Filing” at your business as per the regulatory requirements.
The US DOL will audit the recruitment process anywhere from 3 to 6 months after submission. JKJ Workforce will assist employer in compiling and submission of the audit response.
US DOL: PERM LABOR CERTIFICATION PROCESS
JKJ WORKFORCE ONLINE SUBMISSION OF PERM LABOR CERTIFICATION REQUEST
In coordination with the employer, JKJ will submit the Labor Certification request forms through the PLC Portal Sub-Account. The employer will receive an email confirmation and will be required to respond to the email to confirm the initiation of the Labor Certification process.
US DOL REQUEST FOR INFORMATION (RFI).
US DOL often asks for additional information once the initial application has been submitted and the recruitment process has been audited.
If you have filed as a seasonal H-2B or H-2A employer in the past, a typical PERM RFI would ask that you demonstrate that you do have year-round operations that would cover the job description that is being filed for. You may need to provide payroll records, invoices, contracts, etc., to demonstrate the year-round nature of the employment.
We will work with you to respond to any RFI that is issued as part of this filing process.
US DOL LABOR CERTIFICATION APPROVAL
US DOL Labor Certification approval would typically occur between 6 to 9 months after submission. If the application is denied and you request that JKJ files an appeal, there is an additional fee as per our Professional Services Agreement that you have signed.
US DHS: Immigration Petition & Adjustment of Status
US CIS Petition Creation, Signature and Submission.
US DOL Labor Certification approval is valid for six months. We must submit your US DHS/CIS petition within that six-month window.
The filing process can take one of two tracks, either Adjustment of Status or Consular Processing. To determine the best track for your business and for the worker / beneficiary we would review options with you and move forward along the most suitable track.
Adjustment of Status (Forms Fees $3,335.00, 8 to 12 month process, stay in USA and work).
When the worker / beneficiary is physically present in the USA, in legal status (on some other visa), typically adjustment of status would be filed. During this process, the workers may not leave the USA and the worker / beneficiary can continue to be employed by your company while the application is pending. Forms that would be filed:
- I-140: $700.00 per beneficiary.
- I-907: $1,410.00 per beneficiary.
- I-485: $1,225.00 per beneficiary.
- I-765: No charge if filed concurrently with I-485.
- I-131: No charge if filed concurrently with I-485.
- G-28: If appropriate
Consular Process (Forms fees $2,775.00, 6 to 12-month process, remain outside of the USA pending consular interview).
If the worker / beneficiary is not physically present in the USA at the time that the US DOL Labor Certification is approved, the circumstances might dictate that the filing would be delayed until the worker / beneficiary can be admitted and is legally in the USA in another visa status, then the adjustment of status process detailed above would be followed.
There are situations where consular processing would be more appropriate, which means that the worker / beneficiary must remain outside of the USA until the process is completed, often taking from six to twelve months.
In this case, forms that would be filed:
- I-140: $700.00 per beneficiary.
- I-907: $1,410.00 per beneficiary.
- DS-260 Immigrant Visa Application: $445.00
- I-551: $220.00.
- G-28: If appropriate
JKJ will assist the alien worker/beneficiary in preparation of Alien Beneficiary Binder and preparation for Alien Beneficiary Interview, prior to either Consular or Adjustment of Status Interview/Appointment.
Alien Beneficiary Medical Exam by Registered Civil Surgeon.
After the US DHS petition is approved, prior to Adjustment of Status or Consular Interview, worker/beneficiary will be required to undergo a medical exam by an approved, registered, Civil Surgeon. Specific details will be provided to the employer and the worker/beneficiary when appropriate. All fees for this medical exam and travel are the responsibility of either the employer or the worker/beneficiary.
Issuance of “Green Card”.
If the adjustment of status is denied, there is an appeal process. There is an additional fee for the appeal.
If the worker/beneficiary is denied a PERM visa at the consular interview there is no appeal process and the decision is final.
If approved at the consular interview and/or the adjustment of status, after following additional steps, the Green Card should be issued within 30 days. Typically, it is valid for 10 years and can be renewed after 10 years if the worker has not already sought naturalization. If the worker/beneficiary is seeking adjustment of status of family members, this can also be handled by our company as per our fee schedule.
According to federal regulations at 20 CFR 656.12 the employers must pay all the costs associated with labor certification and fees. The employers may not pass on any of costs or enter into any agreement where the beneficiary later reimburses the employer for any of the fees in any way.
There are currently no regulations that prohibit the alien beneficiary from paying for the USCIS portion of the process.
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Although JKJ Workforce Agency, Inc. seeks the advice of legal and accounting professionals regarding the H-2 program requirements, we are not a legal or accounting firm and we do not provide legal or accounting advice to our clients or to H-2 foreign workers. We encourage you to seek your own counsel regarding legal and accounting issues related to the H-2 program. Government regulations and policies concerning the H-2 program are complicated, subject to change, and interpretations may differ (even among government agencies). Any information we provide, whether oral or written, shall not create any warranty, representation or guarantee unless expressly stated.
Note that JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we utilize on your behalf, an employer, joint-employer, or co- employer of any H-2 worker processed or transported for you, the client-employer. Furthermore, JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we engage to recruit workers for you (if applicable) an employer, joint-employer, or co-employer of any H-2 worker recruited for you, the client- employer. JKJ Workforce Agency, Inc. acts only as a consultant to you the employer in filing H-2B application paperwork with government agencies and in arranging for others to provide you recruiting, consular processing and/or travel logistics, where applicable.