Immigrating to the US for Work - PERM Labor Certification

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As a partner with Fragomen, Del Rey, Bernsen & Loewy, LLP, Rodney Malpert provides legal guidance concerning business immigration matters to clients on the West Coast. Rodney Malpert helps clients work through complex immigration processes such as program electronic review management (PERM) labor certification. 

If employers wish to hire people from outside the United States for a permanent position, they must first secure green cards for those employees from the government. Today, the green card application process with the Department of Labor (DOL) is electronic through the PERM system. 

Once an application is submitted, a decision usually follows within 60 days. The application undergoes review by a DOL certifying officer, who can approve the application, reject it, or initiate an audit. 

PERM application determinations by the DOL depend on a variety of findings. For example, DOL professionals take into account whether or not there are already enough workers in the U.S. who are qualified and willing to fill the position, and whether or not approving employment of a foreign laborer will result in negative impacts for American employees in the same industry.

AILA Announces New I-9 and E-Verify Handbook

One of the leading business-immigration lawyers in the U.S., Rodney Malpert holds the title of partner at the Fragomen, Del Rey, Bernsen & Loewy law firm in Phoenix, Arizona. Among his professional activities, Rodney Malpert has served as the editor of the American Immigration Lawyers Association Annual Conference Nationality Law Handbook since 2008.

In a recent press release, the American Immigration Lawyers Association (AILA) announced the publication of The I-9 and E-Verify Handbook: A Guide to Employment Verification and Compliance. Written by top employment and business immigration attorneys Bruce E. Buchanan and Greg Siskind, the handbook shares vital information related to the E-Verify process, the I-9 form, and anti-discrimination regulations and laws governing the U.S. labor force. It gives extra attention to the system the U.S. government uses to verify employers who have hired individuals with the necessary legal paperwork to work in the country.

The publication comes on the heels of new executive orders from President Trump. The president has stated an intent to enforce employment verification laws better. Additionally, the president has also proposed hiring 10,000 Immigration and Customs Enforcement officers to do so, and it appears likely the expanded taskforce will focus much of its activities on I-9 audits.

The Basics of Attaining PERM Labor Certification for Foreign Employees

A partner at Fragomen, Del Rey, Bernsen & Loewy, Rodney Malpert serves clients from the firm’s Phoenix, Arizona office. Specializing in employment-related immigration law, Rodney Malpert assists clients with attaining National Interest Waivers, H1B Visas, and PERM Labor Certification.

As the name entails, PERM Labor Certification is a legal status that allows American employers to hire foreign nationals as permanent employees in the U.S. To start the process, the employer obtains a certified labor certification application from the Department of Labor’s Employment and Training Administration. Designed to ensure that qualified American workers don’t suffer from international recruitment, this application certifies that there is a lack of sufficient U.S. workers who are qualified and available to accept the job opportunity. 

Then, the U.S. employer submits an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS). To qualify for PERM Labor Certification, the employer must have a full-time position available with job requirements that are customary for the industry, and not tailored to the foreign worker's qualifications. In addition, the employer is required to pay the prevailing wage for the occupation to the foreign employee.

National Interest Waivers Explained

A partner in the law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP, in Phoenix, Rodney Malpert assists immigrants wishing to find employment in the United States. Rodney Malpert frequently recommends that they apply for a National Interest Waiver.

As an alternative to the labor certification process, immigrants with unusual skills may file a National Interest Waiver (NIW) application. The United States Citizenship and Immigration Service grants NIWs to applicants who can prove that hiring them would benefit American economic and social interests. Applicants can request an NIW on their own or with the assistance of an employer; a job offer is not required.

NIWs represent a good choice for persons holding or seeking advanced degrees, such as PhD caandidates and those in and post-doctoral fellowships, or those having exceptional ability in business or the arts. They must possess unique and exceptional skills that cannot be matched by an American worker with similar basic qualifications. Their talents must benefit the entire nation, not just a specific area.

Other admission criteria include the enhancement of educational and housing opportunities for marginalized Americans, improvements to the environment and healthcare of the nation, and the potential to increase the earnings of American workers. Additionally, a governmental agency’s interest in hiring a foreign applicant would work in the applicant’s favor.

However, stricter immigration policies have offset the NIW’s advantages. Complicating the process are differences in adjudication policies between the Nebraska and Texas offices that handle all requests. In In all cases, expert legal advice can improve the chances of success.

A Brief Overview of Nonimmigrant Work Visas

Attorney Rodney Malpert joined Phoenix, Arizona’s Fragomen, Del Rey, Bernsen and Loewy, LLP, in 2008 and continues to serve the leading corporate immigration services provider and advisory as a partner. In this position Rodney Malpert supports the firm’s legal team in a variety of areas, including matters of non-immigrant visas.

Temporary employees working in another country can submit visa applications in a number of non-immigrant visa categories, such as E-1/2 visas for treaty traders and investment professionals, L-1 intra-company transfer visas, and O visas for individuals with “extraordinary abilities.” The firm is also familiar with visa options specific to certain parts of the world, such as E-3 visas for Australians in specialty occupations or TN visas for certain professions in Canada and Mexico.

Alternatively, employees undertaking short-term travel and employment assignments may be more interested in a B-1/2 visitor visa. The firm is also capable of addressing a depth of complications that may arise for senior executives or employees working in nontraditional fields. Furthermore, the attorneys at Fragomen, Del Rey, Bernsen and Loewy can assist recent graduates as they transition from F-1 student status into a temporary employment category.

AILA Opposes Immigration Court Quotas

Holding a juris doctor from Cornell Law School, Rodney Malpert has served as a partner with Fragomen, Del Rey, Bernsen & Loewy in Phoenix, Arizona, for more than a decade. Alongside his everyday work with clients, Rodney Malpert stays engaged with his profession through membership in the American Immigration Lawyers Association (AILA).

In October 2018, the United States Department of Justice (DOJ) began enforcement of a quota system for federal immigration judges. Under the new rules, these judges must complete at least 700 cases on an annual basis or be subject to discipline by the DOJ. In response to these new regulations, AILA once again called upon federal authorities to create a new, independent immigration court. 

In her comments, AILA president Anastasia Tonello said that the new regulations put judges in a position where they have to make premature decisions in cases or risk facing discipline. As a result, the due process of those who come before these courts is violated on a de facto basis, denying them fundamental fairness.

EB-1: Visas for Skilled Professionals and Extraordinary Achievers

A partner at Fragomen, Del Rey, Bernsen & Loewy, Rodney Malpert assists clients seeking expertise in corporate immigration. Rodney Malpert has spoken on topics related to EB-1 visas, also known as permanent residency visas.

EB-1 (employment-based) visas are designed for persons from other nations who work for foreign companies with locations in the United States. Applicants do not have to prove that no American citizens can perform their job.

“Aliens of extraordinary ability” can apply for permanent residency, without having a company sponsor them. Achievements that qualify individuals for extraordinary ability status range from academic articles and scientific innovation to athletic accomplishments and art shown in galleries. Alternately, high-achieving professors can be given EB-1 visas if they have at least three years in their position. 

Employers seeking EB-1 visas for executives and managers must be based in the US and in business for at least one year. Applicants must have worked outside the US for the company for at least one out of the past three years. 

Additional EB visas include the EB-2, for professionals with at least five years of experience and a master’s degree or higher. EB-3 visas are meant for skilled workers with at least two years of experience in a service not easily available already.