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.

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.

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.