There is no rule that requires any employer to withdraw PERM applications on account of layoffs. When you signed it, you asserted to this under the penalty of perjury.
This assertion stated that you have the capability as well as sufficient funds available for paying the salary or wage that you willingly offered to the foreign employee. Also, you asserted that you have the capability of placing the individual on payroll before or on the date that the alien is allowed into the United States. Both of these statements were true at the time of filing the PERM application.
This means there was adherence of the law to the letter. What now after circumstances have all changed? The answer is that there is absolutely no rule or law specifying withdrawal of the application. Being in possession of PERM applications allows the employers opportunities to continuously extend the H-1with any foreign employee hired beyond 7 years. The government may decide to take the stand that that your PERM application is now null and void on the basis of two factors.
One of the factors is that you are no longer in a position to employ the foreigner, hence no open job which is a continuing requirement. Second, you were faced with a problem and are therefore not able to pay the agreed wages or salary to the employee, which is also a continuing requirement. You could end up losing the green cards on both grounds mentioned. The remedy therefore lies in letting the PERM application remain in a pending status. A: Before any employer submits applications for labor certification, the first thing that is required of them is advertising for the position.
The position has to be related to the subject of labor certification. These posting requirements include getting a prevailing compensation determination for the position in question available from the Department of Labor DOL. Afterwards, the employer needs to place the job request with the State Workforce Agency SWA that runs two print advertisements every Sunday. They must be made in a daily paper that has a good general flow of readers implying more chances for the appropriate and potential readers coming across them.
Also, the newspaper is supposed to be an appropriate one taking into consideration the requirements by the state employment office in the area of intended job employment. However, there is an exception in the event that the target Sunday edition newspaper is not available in rural areas.
Also, the employer has to post notifications to the target workers that labor certification applications are being filled for the said position. It is required that these processes and steps be carried out days prior to filing the application for labor certification.
In the case of jobs requiring experience and an advanced degree, the second Sunday advertisement can be replaced by an ad in an appropriate professional journal, although this is not required. Employers intending to recruit for purely professional positions, characterized under PERM as those targeting individuals with college or higher degrees, have to engage in three extra recruitment steps before the process of filing the application.
Satisfactory recruitment channels for professional vacancies include:. In the event that the employer does not find the required or qualified U. While filing this application, an attorney and the employer submit the ETA form either via mail or the internet for foreign candidates.
A: PERM regulations and conditions require that, in the event that an individual needs qualifications that are way higher than those provided in the Specific Vocations Preparation SVP or the OES Job Zone level, then the employer may have to provide business necessity justifications on the same.
Each application or any application that is similar to it can be classified among various other levels. So, in order to find a job that really matches your qualifications, you have to match roles to the same occupation in their OES database. After this, you can then find out the job zone to which your particular job falls. For instance, computer programmers have been grouped under Job Zone 4.
This recruitment and advertising process provides quite a few places for errors and missteps, which can sink a Labor Cert application. Failure to comply with the day and day timing deadlines noted above can result in a Labor Cert denial. Missing one or more of the recruitment or advertising methods, or even failing to properly document such recruitment or advertising, can also end in a denial.
Unclear or vague advertisements, or ads placed in publications having little to do with the industry or field of the job can be seen as efforts to hide the job's availability, which can also garner a denial. Your employer must be careful in the market test process, be clear and open about the job availability, and be thorough in documenting all recruitment and advertising efforts.
The law requires sponsoring employers to accurately describe the duties , educational requirements, experiential requirements, and skill requirements for the sponsored position. This means that an employer cannot set the requirements for the position impossibly high solely to discourage persons others than the sponsored foreign national from applying for the job. This also means that the employer must not "tailor" the job duties and requirements so that they match only the sponsored foreign national's credentials.
The law specifically says that any educational, experiential, or skill requirements for a job must be reasonably necessary to fulfill the job's duties and responsibilities. This "Business Necessity" concept can, and often does, block Labor Certs from being approved. A sponsoring employer must be careful to both accurately describe the duties and responsibilities of a job and set reasonable requirements and prerequisites for that job. The employer should consider industry standards and the general hiring practices of companies and businesses in the same fields.
The employer should also look at any similar positions already with the employer's own business or with other similar organizations and consider what those positions require. For example, requiring a computer programmer at a software company to speak fluent German might be seen as unreasonable, particularly if the programmer does not need to understand one word of German to do the job. However, an elementary school teacher working at a school that immerses its students in German could be reasonably expected, and required, to speak German fluently.
An employer going through the Labor Cert process must take care to reasonably set the requirements for the job. The law requires that an employer sponsoring a foreign national pay that employee at least the prevailing wage rate for the particular job. The employer must also be able to prove that the company can afford to pay the employee at the prevailing wage.
The purpose of the law is twofold: to prevent foreign national workers from being exploited through lower wages, and to prevent the depression of wages in the job market. The prevailing wage is the "average" wage paid to persons employed in similar positions, requiring similar educational, experiential, and skill requirements, in the local geographic area.
Most audited PERM cases have been pending for a long time — often close to two years. Thus, a denial can be devastating news. There are concerns about eligibility for H1B status extensions for foreign nationals who are close to or past their six-year limits.
There are concerns about losing priority dates in cases that cannot succeed. There are questions as to whether appeals or requests for reconsideration are just a waste of time and money at this point. And of course, there is a great deal of frustration all around. PERM applications can be denied for a variety of reasons that are beyond the scope of this article.
Regardless of the reason for a denial, however, once a denial notice is received, there are important decisions to be made by the employer and employee. If the employer does not request either option within the thirty-day period, the decision will become final, and the employer will have no further opportunity to challenge the denial.
It is important to remember that only the employer not the foreign national beneficiary is allowed to request review or reconsideration of the denied PERM. An attempt by the employee to request review will be rejected without further action. Additionally, the costs associated with the challenge to the denial must be paid by the employer, as this is part of the PERM process.
If, for example, a denial is issued because the employer did not use a Sunday advertisement, but the only local newspaper for the rural area in which the job is located does not publish a Sunday edition, the employer could respond with the audit file including evidence from the newspaper that it does not publish a Sunday edition. In evaluating whether or reconsideration is a realistic option, therefore, the employer should very carefully review every element of the audit file very closely in order to assure that there are no mistakes.
An important procedural note is that the Department of Labor regards a request for reconsideration as a distinct remedy in the event of denial from a request for review. This strategy may be appropriate where the denial was issued after the recruitment was already completed; the employer believes the ground for denial was a government error; and the employer is not concerned about the priority date of the application nor with having an application that has been pending for at least one year or seventh year H.
As noted about, the Department of Labor considers a request for reconsideration by the CO, and a request for review by BALCA, to be two separate remedies in the event of a denial. A prudent employer will ask for both forms of relief at the outset, so that the Department of Labor does not have a choice of declining to forward the case if the reconsideration motion is denied.
The other advantage is that if the employer decides to opt for direct BALCA review after asking for reconsideration, as discussed below, the employer can withdraw the reconsideration request and request that the application move directly to BALCA review.
If the employer did not originally requested review by BALCA, this option would not be available, as only the reconsideration request would be in front of the CO, and a request for review at that time would be untimely. As an alternative to requesting reconsideration of the decision, the employer can request direct review by the Board of Alien Labor Certification Appeals.
As a practical matter, however, if the CO determines that a case in which a request for review was filed should not have been denied, the CO can indicate to BALCA that he or she would like the application remanded to the CO for purposes of granting the application.
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