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Joel Stewart on PERM Labor Certification

Is Your PERM Case Ready to File an Immigrant Visa Petition?

Rating: 4 votes, 5.00 average.

PERM cases, approved by the U.S. Department of Labor, are the first step in the process to become a U.S. Resident. The procedure requires the Employer to file an application for PERM, and then an I-140 Immigrant Visa Petition with the U.S.C.I.S. (Department of Homeland Security). In both these instances, the Employer is the one who must take action on behalf of the alien beneficiary.

When the I-140 Immigrant Visa Petition is filed, the Employer must provide, essentially, three things: (1) Approved PERM case (except in some exceptions where a PERM approval is not required), (2) Evidence of the beneficiary's qualifications, and (3) Evidence of the Employer's qualifications, such as legal business entity and ability to pay the wages to the alien (Income Tax Returns are usually submitted).

Since a PERM case approval is only valid for 180 days, it is a good idea to prepare the documents to prove qualifications even before the PERM case is approved.

Documentation of the beneficiary's qualifications usually requires evidence of completion of coursework, training, diplomas or certificates, depending on the requirements the Employer listed on the PERM Form 9089. Some of these documents are hard to get from overseas. Some alien beneficiaries can not locate the source to obtain the documents from schools that are closed, merged with other schools or whose records are no longer available in detailed form. Details are required to prove the alien's exact qualifications, such as specific coursework or training.

Documentation may also be required from previous jobs held or from self employment, where the employer is no longer available. Sometimes the employers have moved or closed their businesses, and others may have died. In this case, proof of work experience can be obtained from other sources.

Financial information is also hard to obtain. Accountants may have requested extensions for tax returns. Expensive CPA audits may not be available. And if the employer's financial situation does not show positive on the income tax return and supporting documents, the I-140 Petition will fail for lack of proof that the Employer is able to pay the wages.

The ability to pay may be documented by net profit, net current assets or by proof that the alien has occupied the position and been paid the required "prevailing wage" or higher.

It must also be remembered that the priority date for an I-140 Immigrant Visa Petition comes not from the filing date of the Petition at USCIS, but from the filing date of the PERM case. The filing date and approval date are written on the PERM approval Form 9089.

Many times, however, the USCIS does not write the priority date on the I-140 Petition, or does not write the correct priority date. The Employer should always check the I-140 Petition approval for errors on the face of it, including the absence of the priority date or the wrong priority date.

Employers and Beneficiaries refer to the Visa Bulletin of the US Department of State (Google "Visa Bulletin gov" to view the current visa bulletin or archives. The priority date will appear on the Employment Based section of the visa bulletin.

There is normally a backlog for beneficiaries to apply for residency in the 2nd or 3rd Preference shown on the Visa Bulletin. Most countries are usually current for the 2nd Preference, but not for the 3rd Preference. That is why the priority date is extremely important, to prove that the beneficiary's priority date is current, or if not, how long it might take to become current.

1st, 4th and 5th Preference Cases do not require approved PERM cases, nor do certain categories of extraordinary or exceptional ability workers, or persons who will work in the National Interest, or persons whose occupations are "pre-certified" on the Department of Labor's List of positions on Schedule A.

Backlogs sometimes appear to be very long, however, priority dates jump forward or fall back frequently and unexpectedly. In July of 2007, the priority date for most countries became current, permitting beneficiaries to apply for residence in the U.S. Due to the large number of applications received, the priority date was set back, currently about seven years backlogged, to permit the "tsunami" of applicants from 2007 or before to complete processing and receive residency according to their priority dates.

While PERM processing itself is complex and full of dangers, beneficiaries must be aware of the fact that an approved PERM case is only the first step for processing an I-140 Immigrant Visa Petition. Due to the 180 day time limit to prove the Petition, it is advised that work begin on the Petition as soon as possible, so as not to miss the 180 day processing deadline!

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