These new regulations apply to labor certifications for permanent employment filed for aliens on or after March 28, 2005. The standards are the same as before, namely whether there are sufficient United States employees who are able, willing, qualified and available; and whether such employment will have an adverse effect on the wages and working conditions of U.S. workers similarly employed.
CHANGES IN THE PERM SYSTEM
a. The new forms may be submitted electronically;
b. Supporting documentation need not be submitted on filing;
c. Applications are filed directly with the U.S. Department of Labor;
d. An employer may withdraw an application filed before March 28, 2005 and re-file under PERM, and retain the original filing date, provided a job offer has not been placed according to the regulations in effect prior to March 28, 2005;
e. The wage offered must be at least equal to the prevailing wage;
f. Notice of filing must be posted in specific locations for ten consecutive business days;
g. The employer must conduct recruitment efforts more than 30 days and fewer than 180 days before filing.
Recruitment rules differ between professionals and nonprofessionals. For professionals, there are additional requirements, viz.:
a. Sunday edition newspapers advertisements are necessary;
b. A State Workforce Agency must approve a job order;
c. There are special provisions for university teachers, and for those who have exceptional ability in the sciences and arts.
To file for labor certification the State Labor Department must determine a prevailing wage for any particular region. If there is a closed shop union, the union wage is considered prevailing. No time limit has yet been set for a state to give a prevailing wage. When the prevailing wage is determined, the application may be sent to the U.S., Labor Department which will decide cases between 45 to 60 days. When the Labor Department approves, the way is open to file for permanent residence.
H-1B PETITIONS FOR FISCAL YEAR 2005
The additional available H-1B petition numbers have not yet been issued for fiscal year 2005. Uncertainty exists as to whether the United States Citizenship and Immigration Service (USCIS) will accept only applicants with at least a Master’s degree or will hold to a previous announcement that meeting H-1B requirements would be sufficient, viz. a bachelor’s degree.
The USCIS will accept H-1B filings for fiscal year 2006 as of Friday, April 1, 2005.
If it is practicable, one may apply for a fiscal 2005 number as well as a 2006 number and thereby take advantage of the earlier date if it is possible. One might pause, however, because it would require two filing fees.
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