Tennessee Immigration Attorneys Assisting Clients with PERM Visas in Nashville

When an individual who is not a U.S. citizen wants to come to the country in order to work for a specific employer, there are a number of different types of visas for which that person may be eligible. The proper type of visa depends upon whether the individual plans to work permanently or only temporarily in the United States, along with other factors. Generally speaking, anyone who wants to work permanently in the U.S. and is currently a foreign national will need to obtain one of the following visas through U.S. Citizenship and Immigration Services (USCIS): EB-1, EB-2, EB-3, EB-4, or EB-5.

If you have a job offer, you also may be eligible to become a lawful permanent resident (also known as a green card holder). Foreign nationals who want to obtain a green card through their employment in the United States need to learn more about PERM visas or PERM labor certification. What is PERM and how does the process work? A Nashville immigration attorney can help.

What is PERM?

The Program Electronic Review Management (PERM) is a system through which the U.S. government processes labor certifications for employer-based permanent residence (Green Cards). If you are seeking an EB-2 visa (for workers with an exceptional ability or advanced degree) or an EB-3 visa (for skilled workers, professionals, and unskilled workers), you will need to go through the PERM process. As such, an EB-2 or EB-3 visa may also be known as a PERM visa.

The PERM process started over a decade ago, and it is the system that employers typically need to go through in order to have an immigration petition approved for an EB-2 or EB-3 visa.

How Does PERM Certification Work?

PERM is unlike other immigration applications in that the process is mostly governed by the U.S. Department of Labor, instead of the U.S. Citizenship and Immigration Services. This unusual process trips up many employers. To go through PERM labor certification, an employer needs to submit a Form 9089 to the U.S. Department of Labor (DOL). The DOL explains that the following steps are necessary to obtain a permanent labor certification, which ultimately permits a U.S. employer to hire a foreign national to legally work and live permanently in the country:

  • Request and obtain a “prevailing wage determination” from the National Prevailing Wage Center (NPWC), which includes information that must be included in the Form 9089;
  • Employer must attest to certain information about its recruiting standards for the position, and it must provide a report about the lawful job-related reasons that it rejected U.S. applicants for the position;
  • File the ETA Form 9089, which must describe the foreign national’s job duties, educational requirements, training, experience, special skills required to do the job, and the foreign national’s specific qualifications for the position;
  • Original signature from the submitting employee;
  • Provide required supporting documentation in the event of an audit; and
  • Retain copies of permanent employment applications for five years from the date of filing the ETA Form 9089.

Our attorneys work with employers to develop the correct documentation to improve the chances that a PERM application is approved. We work with businesses to help prove to the Department of Labor that the business has been unsuccessful in recruiting qualified U.S. workers for a position. Typically, a business can demonstrate a lack of “able, willing, qualified, and available” U.S. workers through “testing” the local labor market through advertisements. While there are different ways an employer can “test” the market, the typical process includes:

  • Running two Sunday print advertisements in a newspaper of general circulation covering the area of intended employment;
  • An internal posting notice of the opportunity;
  • A 30-day “job order” placed with the state Department of Labor; and
  • Additional forms of recruitment for “professional” jobs, which may include website postings, an employee referral program, or other efforts.

The language of the ads and postings must meet strict criteria set forth by the Department of Labor. Usually, the employer has to run the ads even if the intended immigrant beneficiary is already employed by the employer. All these recruitment steps help demonstrate that the employer has made a good-faith effort to hire qualified U.S. workers before resorting to hiring a foreign worker.

If the recruitment process demonstrates that there are no minimally qualified U.S. applicants, the case can proceed toward labor certification by filing the ETA Form 9089. The employer will have to prepare a “recruitment report” that details each step, including performing interviews of U.S. applicants for the position (if any). Our attorneys work closely with employers to ensure that their reports and other required documentation meet the DOL’s requirements.

After the ETA Form 9089 is filed with the Department of Labor, the agency may approve the application, select it for audit, or rarely, deny the case without an audit. A small percentage of applications are chosen for audit randomly. If you receive an audit notification, it does not necessarily imply that something is wrong. Our attorneys can work with businesses to ensure that their audit response is as strong as possible and to compile the required documents in advance, in the event a case is selected for an audit. Rarely, the Department of Labor may require an application that has been audited to go through “supervised recruitment,” requiring the recruitment steps above to be done again under DOL’s supervision.

An audit merely requires that the employer prove that it took all the appropriate recruitment steps and if there are specialized requirements for the job (such as educational, experience, training, or foreign language requirements), that business necessity supports those requirements.

From Labor Certification to Work Visa and Green Card

Once the employer has obtained labor certification from the DOL, the next two steps must be taken within a limited window of time:

  1. The employer must obtain an immigrant visa (typically an EB-2 or EB-3 visa) from USCIS for the worker, based on the approved PERM labor certification (this is done through Form I-140); and
  2. The employee must apply for adjustment of status if the worker is in the United States or attend an interview at a U.S. consulate if the worker is not in the United States (the process for obtaining a Green Card).

During these processes, the employer must demonstrate it has the “ability to pay” the stated salary or wage. This evidence may include audited financial statements, payroll records, annual reports, tax returns, or other suitable documentation. The employer must also demonstrate that the employee selected for the PERM process actually meets the minimum requirements (if any) for the job the employer recruited for during the labor market “test.”

Contact a Nashville Immigration Attorney for Help with Each Step

Are you an employer that chronically struggles to find U.S. workers? Do you wish to sponsor an immigrant worker for a Green Card? Do you need assistance with a PERM case, or do you have other questions about obtaining an employment visa? An experienced Nashville immigration lawyer can help with your case. Contact Ozment Law today to learn more about how our attorneys can assist you and your business. We have years of experience with PERM applications and can assist employers and their employees with every step along the way, from the first steps to the worker obtaining permanent residence.

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