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Joel Stewart on PERM Labor Certification

Interview with David Ware: PERM in time of Recession?

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David Ware, a well known immigration lawyer and lecturer, will be joining our ILW teleconference on Wednesday, October 28. It starts at 2:00 p.m. and is the first of three teleconferences entitled "PERM for Experts."

David will kick off the conference by talking about issues stemming from the current economic crisis.  posed some questions to David, and he was kind enough to give us a preview on his talk.

1. What are the pros and cons of filing a PERM application in times of high unemployment, i.e., should PERM be temporarily suspended?


David: Certain markets have high levels of available US workers, so the Employer has to consider whether a PERM application should be filed based on its knowledge of the local market.


2. What happens if the company is cutting back on salaries, and the wage for a labor certification has already been processed and filed with the 9089?


David: The wage stated in the application is an offer only, which must only be paid at the time the beneficiary becomes a permanent resident. The labor certification can go forward, but the employer must be advised that at some point, the beneficiary will have to be paid the required salary, or the labor certification and/or I 140 will have to be withdrawn.>>


3. What happens in the above, if the PERM is approved, but the I-140 has not yet been filed or is still pending?


David: The same salary must be offered in the I-140, but need not paid until permanent residency is approved. If this becomes impossible, then as stated before, the labor certification and/or I 140 must be withdrawn.>>


4. What happens if the I-140 is approved and the alien will not be paid the same salary stipulated, even though the salary is higher than the prevailing wage?


David: I would advise the employer to withdraw it.>>


5. Given the long backlog for 3rd preference, should applications for 3rd preference aliens continue to be filed, and, if so, with what caveats to the employer and alien?


David: We do them all the time. Most third preference candidates do not qualify for an exemption for labor certification. However,  3 yr H extensions (once the I-140 is approved) are available which can now be premium processed in case H renewal time rolls around.>>


6. What if the alien has a temporary visa and is transferred to another part of the country on job offer will be mo. May the PERM application, if already filed, continue to be processed?


David: Where there is possibility of transfer, unless the application provides for undetermined locations within the US, the employee must be transferred back to original work-site once permanent residency is approved.>>


7. Can the Employer sign the attestations on the PERM case (that there is a job opportunity and that he has enough money to pay the alien) with annual receipts dropping, demand for his product dropping, and bleak outlook to continue in business.


David: Yes, if he plans to keep the alien on as long as he is able to pay the salary.>>


8. What difference is there, if any, if the Employer has begun some kind of bankruptcy proceedings?


David: Bankruptcy doesn't necessarily liquidate all assets but rather gives the employer "breathing space" with creditors. I think it might usually be a problem when presenting financials at the I 140 stage, but you never know; if given bankruptcy protection, it is conceivable the employer might not be showing a loss on financials.


For more up-to-date information on this and other topics, tune in to our teleconference on Wednesday, October 28th! David will be joined by Rohit Turkhud and Christian Allen, who will also discuss how to get a PERM application started using the new PERM application form.



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