20 Sep 2016

Seattle PERM Lawyer

Until 2005, the labor certification system in the United States was fairly slow and inefficient. For those seeking a way to immigrate the US for work, this long wait only added more stress to a process that was already extensive and stressful. Fortunately, PERM was introduced as a way to streamline the labor certification process so that both working immigrants and employers seeking to hire foreign workers could go through the visa process faster.

If you need guidance or legal counsel in attaining your labor certification in the US, there’s a law firm that specializes in just that. Located in Seattle, WA, the attorneys at Orbit Law, PLLC specialize in immigration and Nationality law. Because it is our core focus, we are dedicated to continuing our education and understanding of immigration law in the US. We frequently attend and speak at immigration-related seminars to keep our finger on the pulse of these ever changing laws. Now, keep reading to learn about PERM, and how it works within the labor certification process.

What is Labor Certification

Labor certification is an employment-based opportunity for obtaining citizenship. This process is done by US employers looking to hire an immigrant worker. There are numerous conditions attached to this type of green card, but the chief underlying condition is that the employer can’t find qualified US workers to fill the needed position. Once the application is approved by the United States Department of Labor, the employer can then work towards attaining permanent residency for said foreign worker. The labor certification process is complicated and can take a lot of time. Luckily, in the last decade, PERM was launched as a way to streamline the labor certification process for employers.

How Does PERM Work?

Program Electronic Review Management (PERM) is an electronic labor certification system designed to expedite the Labor Certification application process. With PERM, it only takes around 60 days to process the applications. This is a vast improvement from the old system, which took months of extensive interviewing and persuading before an employer was allowed to hire a foreign worker. While PERM has helped to expedite the labor certification process, the system as a whole is still very complicated, and would be best done with a knowledgeable attorney by your side.

PERM Timeline

From the start of the case to filing the PERM LC application, form ETA 9089, the PERM process usually takes four to six months. As explained in greater detail below, employers must complete certain detailed steps pertaining to efforts to recruit U.S. workers as part of the PERM process. These highly detailed requirements must completely be met before the case can be filed with the DOL.

Minimum Requirements and Duties for Offered Position

The starting point in the PERM LC process is establishing the duties and requirements for the position that forms the basis of the PERM case. There are specific regulations governing the content of the job description, as well as the job requirements or qualifications. These regulations must be carefully adhered to, as cases can be denied for issues that, to the average employer, may seem to be minor technicalities.

The sponsoring employer must set forth clearly defined job duties and educational and/or experience requirements needed to qualify for the position. The requirements set by the employer for the position must meet the DOL’s “actual minimum requirements” rule. This means that the requested education and/or experience must reflect the employer’s absolute minimum qualifications for the job to be performed in a competent (not superior) way.

An employer may never have considered these matters in the detail or in the same manner as the DOL prior to commencing a PERM case. In such a situation, it could take a number of days or even longer to finalize this initial part of a case. There is a high level of employer participation at this stage. Thus, the length of time required to complete this portion of a case depends in part upon the employer’s availability.

A separate aspect of the analysis of the job definition is the determination of whether the sponsored employee will be able to document that s/he meets the employer’s education and/or experience requirements. This can cause delays while efforts are made to obtain sufficiently detailed experience letters from prior employers, educational documents, and evaluations of foreign educational credentials.
Benefits of Obtaining Prevailing Wage Before Recruitment

In order to file the PERM application, it is necessary to obtain a prevailing wage determination (PWD) from the DOL. This establishes the appropriate minimum wage level required for the position. Wage determinations take approximately six weeks, as of this writing. While the PWD can be processed during the recruiting period, it is often advisable to obtain the determination prior to starting recruitment.

There are a number of reasons it is often beneficial for an employer to obtain the PWD before the recruitment process for the position begins. One reason is that there is a level of unpredictability in the DOL PWD process. If a wage is used that the employer believes will be the PWD, but the actual PWD issued weeks or months later turns out to be higher, the employer may be forced to restart the entire recruitment process from the beginning.

Timing issues are another reason many immigration practitioners favor obtaining the PWD before the employer starts recruitment. Recruitment efforts are only valid for a limited time, and if recruitment starts before the PWD is obtained, the PERM LC must be filed during the assigned validity period of the PWD. Thus, if recruitment cannot be completed before the PWD expires, it is often necessary to start the entire case over again.

The case can sometimes be salvaged if there is enough time to obtain a new PWD before the recruitment efforts expire. However, even when a new PWD is issued in time, the wage may be updated to a higher rate. This, too, may necessitate starting the recruitment anew. On the other hand, if the PWD is issued prior to any recruitment steps are taken; the validity of the wage determination is prolonged. Therefore, obtaining the prevailing wage before recruitment begins can avoid these potential complications.

Recruitment Format and Requirements

The DOL has exacting regulations as to the form and content of the recruiting efforts required of the sponsoring employer. The employer is required to use newspaper ads, a posting in the state labor department’s job bank, and, for professional positions, three additional allowed forms of recruitment. The regulations address not only the types of recruitment, but also the content of the advertisements.

Various companies and agencies generally must be utilized during the advertising process, which sometimes leads to errors. Therefore, this process must be closely monitored. For example, the state labor job posting is required to run for 30 full days. Sometimes, however, the state agency will cut short the posting without authorization. If this occurs and is not corrected, the DOL may deny the case. Other forms of advertising may not have to run for such a long period of time, but they are subject to issues such as human or machine error, which could also render the recruitment campaign unacceptable to the DOL.

During recruitment, the employer must promptly and appropriately respond to any resumes or applications submitted by interested candidates for the proffered position. Otherwise, the DOL will not consider the recruiting efforts to be valid and acceptable. This almost always leads the employer to have numerous questions for the attorney as to the appropriate response and screening of potentially qualified applicants. If an employer improperly handles job applications or interviews, it can doom the process.
30-Day “Quiet” or “Hold” Period

Some people like to call the period between finishing most of the recruitment and filing the application a quiet or hold period. In reality, it is part of the required recruitment period. After the 30-day job order and most of the other recruiting is complete, the PERM LC filing still must wait for an additional 30 days. This is so that the employer can continue to receive and consider job applications in response to the prior recruiting efforts. In general, if a PERM LC is filed before the 30-day mark, it will be denied.
Employer / Employee Sign Form Under Penalty of Perjury

The attorney may be able to prepare the extensive ETA 9089 form during the recruitment period. However, the form cannot be finalized until after the recruitment process is completed. Once the form is finalized, it must be approved by both the employer and employee, who will be signing their respective portions of the form under penalty of perjury.

Review PERM Carefully Before Signing and Filing

Employers and employees should take the time to carefully review the entire form and address any issues or discrepancies prior to filing. A pending form cannot be corrected.

The only option for fixing such errors is withdrawing and re-filing, and this is only possible if the recruiting and wage determination are still valid.
Qualified Candidate/s Applying Terminates PERM

Of course, if the recruitment locates qualified, willing, able, and available U.S. worker applicants to fill the offered position/s, the PERM application must end at that point, in most cases. If the employer wishes to do so, it may be possible to try again later, which would require starting the entire PERM process anew.

Orbit Law, Your Seattle Immigration Attorneys

Immigration law is too complicated to pursue on your own, so you can rest assured knowing that with our knowledge and experience, we can help you navigate the many legal issues that come with immigration and labor certification. You can contact our Seattle legal office here, or give us a call at 206-623-3352.

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19 Sep 2016

Permanent Residency Options For Multinational Executives And Managers (EB-1C)

The EB-1C Immigrant Visa belongs to the First Preference visa category. It is an excellent avenue for multinational companies to expand operations into the US as it allows senior level managers and executives, with direct company experience to enter the US and pursue permanent residence here.

Basic Eligibility: The basic requirements that must be met prior to pursuing this option are that the Individual must have been employed as either an executive or manager by a qualified company for a period of one year within the last three years immediately preceeding the date of the application

A qualified “executive” must be an individual who directly manages the organization or a major part of it; has extensive decision-making authority, and supervises other employees while receiving only general supervision or direction from upper management.

A qualified “manager” is an individual who manages at least a subdivision of an organization, and supervises and controls the work of other supervisory/professional/managerial employees, or manages an essential function of the business. Furthermore, a manager must have authority to employ and terminate those who are supervised or at least work at a senior level in the organization.

A “qualified organization” is an entity if it is either a US affiliate, parent or subsidiary of a foreign business entity. The terms “affiliate,” “parent,” and “subsidiary” are defined by immigration regulations.

Benefits of EB-1(C)

Shorter Processing Time: The EB-1(C) visa provides the applicant Permanent Residence within the United States. There are no formal quotas for these types of applications; hence, the wait time for Permanent Residence via this option is a considerably shorter wait than is true for the EB-2 or EB-2 visa categories.

No Labor Certification Required: Unlike the PERM process that requires employers to complete an often arduous task of advertising the available position, conducting good faith recruitment and then waiting the normal 4-6 month processing time in order to receive certification on an LCA, the EB-1(C) does NOT require Labor Certification as a part of the process.

How We Can Help: We know that demonstrating that an applicant meets the requirements of the EB-1C visa is a potentially overwhelming task. However, by working with a law firm like ours that has experience handling these types of applications and cases, you can rest assured that your application is in the hands of professionals who know how to help you achieve your goal of living and working in the U.S.

Please do not hesitate to contact us to find out what we can do to help.  Call (206) 623-3352

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01 Apr 2014

H-1B Fiscal Year 2015 Filing Information

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap beginning today, April 01, 2015. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

We will provide updates regarding cap issues as and when we have it, so please check back for updates.

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25 Feb 2014

Getting Ready for H-1B filings

The deadline to file H-1B petitions for foreign national workers is fast approaching. All new H-1B applications MUST be received at the respective USCIS location on or close to April 01, 2014. This year, like last year, is more likely than not going to result in a lottery as the demand for visas is far higher than the number of visa’s available. Employers interested in filing H-1B’s for prospective employees or current OPT/STEM employees need to start the process now!

Background

The H-1B visa is an attractive option for employers that rely on the temporary employment of foreign professionals in the United States for positions that employers’ often cannot find qualified skilled talent. Specifically, this visa category offers work authorization to foreign nationals employed in specialty occupations, defined as a position requiring at least a bachelor’s degree in a specific academic field. Over teh years, the vast number of H-1B petitions have been filed for employees in the Technology Industry. Employees with degrees in Science, Technology, Engineering or Math (STEM) account for the largest portion of these visas.

Congress has set an annual limit for H-1B visas at 65,000 per fiscal year (with an additional 20,000 reserved for occupations requiring an advanced degree from a U.S. institution). Given the H-1B visa’s versatility and popularity, this annual quota is often reached shortly after the filing period opens.

The Importance of Early Preparation

The demand for H-1B visas is expected to be even higher this year than last year, when the cap was met during the first week of April 2014. We expect that the cap will be met within the first week of filing this year as well. Petitions are accepted on a “first-come-first-serve” basis. Any applications filed after the cap is met will be returned and cannot be re-filed until the following year.

To maximize the chances that your H-1B petition is included in the cap, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing on or before April 1, 2014.

For first time H-1B petitioner, the need to get started now is even greater, as chances are that the company will need to complete an additional verification process before you can even submit the LCA. All petitions need to be supported by adequate documentation of education credentials; employment offer; proof of sufficient work for the duration of the H-1B validity, and ability to pay higher of the prevailing wage or the actual wage.

Our team at Orbit Law, PLLC is ready to handle your H-1B filing needs. Whether this is your first time petitioning for a foreign worker, or whether your company has utilized the H-1B visa in the past, we are ready to provide the level of support and attention you require so please do not hesitate to contact us if we can be of service.

 

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14 Jan 2014

WA State House passes “Washington Dream Act”

The Washington State Dream Act was approved by the state House on Wednesday, bringing undocumented students one step closer to being eligible for the State Need Grant.

The measure was approved 77-20, with unanimous Democrat support and a split vote on the Republican side. It was the last piece of House legislation to make it through before the session’s cutoff.

House Bill 1817 would qualify all students who graduated from a Washington high school or earned a diploma-equivalent in the state for the State Need Grant — the state’s largest financial-aid program — as long as they meet other grant requirements. The students must also remain in the state after earning their diploma, until they attend college. The bill now goes to the Senate for a vote.

Please stay tuned for updates as we will be posting any developments on this front as and when there is news to share.

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09 Jan 2014

Republicans to Release “Principles” on Immigration Reform

Speaker John Boehner told rank-and-file Republicans that his leadership team was drafting “principles” for overhauling Immigration laws that will be presented in coming weeks.

The Senate, controlled by Democrats passed a broad Immigration overhaul plan in June 2013. The Senate bill called Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744)allowed for broad overhaul of the current Immigration system, including a path to legalization for the more than 11 Million undocumented individuals currently living in the U.S.

It is unlikely that the GOP controlled House will allow a similarly broad bill to pass; rather, it seems far more likely that the GOP will allow for smaller bills to proceed. Our prediction is that the GOP will move ahead with these three issues:

  1. Adjustment of Status for youth: The Senate bill allows Individuals who entered the U.S. as children adjust status i.e. acquire Lawful Permanent Residence in the U.S.(a smaller component of the originally proposed DREAM Act) A smaller version of this called Deferred Action for Childhood Arrivals (DACA) or “Deferred Action” is already in process.
  2. StartUp Act: The StartUp Act originally proposed back in 2010 by Senator Kerry, has gone through several revisions and currently stands at StartUp 3.0. The StartUp visa would allow for:
    1. foreign entrepreneurs who will employ at least five full-time workers — who are not family members — to stay in the U.S. for up to three years. Applications would be open to holders of the H-1B or F-1 visas as long as they’ve already raised at least $100,000 in funding and are employing at least two people currently.
    2. create a new five-year visa for foreign students in STEM disciplines who get a job in a technical field. Students would then have the right to become a legal resident and possibly a citizen after that five years
  3. Immigration Innovation Act: This would increase the number of H-1B visas available in any given year; would allow foreign students to have “dual intent” so they do not have to show an intent to return to their home country at the end of their academic program; allow certain job categories like STEM related field to be exempt from employment based Green Card cap

Please stay tuned for updates as we will be posting updates on the Immigration legislation front as soon as we receive them.

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