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Joel Stewart on PERM Labor Certification

Who Can File a PERM Case?

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Almost anyone Employer can file a PERM case.


According, to Federal regulations the Employer can be a corporation, partnership (including joint venture) or sole proprietorship, and can also be either a US entity or foreign, except that foreign entities need to have a location in the US where workers can be referred for interview, plus a FEIN (Federal Employment Identification Number). In addition to these Federal requirements, all employers must comply with state and local laws, which means that they must be registered to do business in the specific state where the job site is located. 


Although the definition of employer for purposes of filing PERM is very broad, there are other requirements to take into consideration.


An individual (sole proprietor) cannot file an application for himself, and in some cases this prohibition extends to closely held companies. Applications for family members are also frowned on, although the regulations do not define the term "family."  The point in these cases is that during the PERM process, the Employer has to wage a bona fide search for US workers, and if the alien is in a position of control, to influence the outcome of this search for qualified workers, the application may not be approved.


Although it has sometimes been held that an alien with an E visa may not apply for labor certification, an application may certainly be approved for an E visa holder, provided the alien is not in a position to control hiring or the outcome of the job search. Investors, of course, may apply under EB-5 for permanent residency if they invest from 500,000 to 1,000,000 dollars and meet certain other requirements.


In order for a PERM application to be approved, Employers must also have adequate funds to pay the proposed alien worker. This proof is normally submitted to DHS along with the I-140 Immigrant Visa Petition. Nevertheless, an application for PERM may denied by DOL for inability to pay the wages. The time period relevant to the ability to pay is from the date the PERM application is filed until the date the PERM application is approved, and even beyond that date, until the I-140 Immigrant Visa Petition is approved. An alien may also be denied residency if, at the time of consular processing or adjustment, the employer can no longer sustain the job offer.


The Employer has to state that its job offer is currently open to the alien and to US workers, thus it may be difficult  for Employers to apply for applications which depend on a condition subsequent. For example, if an Employer intends to place the alien in a job at some time in the future, after a branch office is opened, this might not be considered a job currently open.


Regarding state and local laws, this usually entails compliance with all zoning laws, local ordinances, property encumbrances, licensing requirements, state unemployment insurance, state taxes, and any other laws that the state or local jurisdiction may impose.


Denials for any of the above may come from DOL, but more likely from the DHS when an I-140 petition is being considered for approval, or even after an I-140 has been approved, during adjustment of status proceedings. Revocation would occur if an approved petition may no longer be considered to be in compliance with the law.


Employers have to have bona fide job offers,  and they have to be bona fide employment entities. Everything in an application for PERM has to be bona fide. The DOL usually uses a "totality of the circumstances" test to decide whether a specific application is bona fide.


Some jobs fail to meet this test because of a lack of knowledge of the regulations. This would occur when the Employer has puffed up the job requirements to include various employer preferences and restrictive requirements, often intuitively and not purposefully.


In some situations, however, failure to be a bona fide employer could occur when material misrepresentation or fraud occurs in the application process.


Anyone who wishes to know the pitfalls and dangers of being a PERM employer may merely google the words "PERM  bona fide" on the internet and review the results. Employer beware!

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Comments

  1. Jake K's Avatar
    You mentioned E visa, however, an alien with E-1 or E-3 visa is less likely to be in position to control hiring. At least, not very different than H-1B visa holder.
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