The
Department of Labor Overhauls the Labor Certification Program
Used for
Obtaining a Green Card
by Navid Dayzad, Esq.*
There are several paths a foreign-national can pursue to obtain
a Green Card through his/her employment. By far, the most common
route is by obtaining a labor certification from the Department
of Labor. The Department of Labor grants a labor certification
to an employer who can establish that the company has attempted
to find a minimally qualified U. S. worker to fill an open position
at the company, but that the company has been unable to find
such a worker. Therefore, the Department of Labor grants a labor
certification so that a foreign-national can then apply for
Green Card and fill the open position on a permanent basis.
On December 27, 2004, the Department of Labor issued a new
law, called PERM, that dramatically changes the labor certification
process. The new law is effective March 28, 2005, and may
provide significant advantages to individuals with pending
labor certification applications under the old laws, as well
as to individuals who would like to apply anew for a labor
certification to ultimately receive a Green Card.
The greatest advantage under PERM is that it is much, much
quicker. Under the old system, an individual would have to
wait two to five years for the Department of Labor to make
a decision on the application. Under the new PERM system,
the Department of Labor promises to make a decision in 45
to 60 days. Another significant advantage is that instead
of reviewing every application in detail, the Department of
Labor will only audit certain cases and accept the employer's
conclusions in the remaining cases.
The general procedure for a labor certification application
under PERM involves a recruiting campaign according to specific
guidelines, interviewing applicants, maintaining thorough
documentation, and submitting a lengthy application electronically
or through regular mail. The best part is that it is free!
(The Department of Labor does not require a filing fee for
the application.)
An experienced immigration attorney assists the company and
employee each step of the way. Legal counsel can craft a case
that will most persuasively establish a shortage of U. S.
workers and insure that the company has conducted the recruitment
in accordance with established case law to minimize the risk
of an audit, delays, or a denial.
PERM also allows for an individual with a pending labor certification
application under the former laws to re-file an application
under the faster PERM system. Under certain circumstances,
the individual can even retain the priority date established
under the original application. Such a procedure can be especially
advantageous because it will increase an individual's chance
of securing a critical visa number before the visa numbers
run out. An experienced immigration attorney can help decide
which cases are best suited for re-filing.
With the new law and renewed emphasis by the Department of
Labor to quickly and fairly review the applications comes
a great deal of hope. Deserving foreign-nationals ought to
seize the opportunity and secure a future for themselves in
America.
*NAVID DAYZAD graduated summa cum laude from UCLA in 1996.
Mr. Dayzad earned his law degree from the UC Berkeley’s
Boalt Hall in 1999 where he won the American Jurisprudence
Award, among other honors. After practicing employment law
at the international law firm of Paul, Hastings, Janofsky
& Walker, Mr. Dayzad has focused exclusively on immigration
law for over four years. Mr. Dayzad currently practices immigration
law in the sub-specialties of employment-based immigration,
family-based immigration, and deportation defense. He has
presented seminars on such topics as Labor Certifications,
Employment Verifications, and Travel Issues, which was featured
in Silicon Valley's premiere newspaper, San Jose Mercury News.
Over the years, he has represented large multinational companies,
small startups, as well as families. He also currently serves
on the Los Angeles Mayor's Advisory Board to advocate for
immigrants’ rights in LA. Mr. Dayzad speaks Farsi and
Spanish.
Disclaimer:
This publication serves only as general information
and is not a substitute for consultation with an attorney
who can assess the specifics of a case and inform of the constant
changes in law and policy. No attorney-client relationship
is formed by the transmission of this information.
Copyright © Navid Dayzad 2005
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