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- Employee referral program with incentives;
- Use of campus placement offices;
- Use of local and ethnic newspapers;
- Use of radio and television advertisements.
Only one of the aforementioned efforts may be conducted
within 30 days of filing the PERM labor certification application,
and none may take place more than 180 days prior to filing
the application. Notice of the job opportunity must be posted
in a clear and conspicuous location for at least 10 consecutive
business days within 30 to 180 days before filing the labor
certification application.
workers do not displace U.S. workers. Only after recruitment
is completed, and if the employers can show that they were not
able to find qualified, able and willing domestic workers for the
position, would the agency certify a PERM application.
The sponsoring employer must review and interview applicants
and disclose to Department of Labor receipt of all applications. If
any of these regulations are broken, the sponsoring company and
all persons involved in the process can be subject to enforcement
action including criminal prosecution.
The following are warning signs that applicants should be
aware of when seeking an EB-3 unskilled worker position:
•
They are asked to pay the legal fees, advertising
fees, or administrative fees associated with the EB-3
process. The U.S. Department of Labor regulations require
that the employer cover all expenses in connection with
the first step of the sponsorship process, which includes the
legal fees, expenses, and all advertisement costs associated
with the test of the labor market2. At this time, there are no
exceptions to this requirement and prospective employees or
third parties may not provide any reimbursement or offer to
cover any portion of these costs.
•
Paying fees to an agent to find an EB-3 position for
sponsorship. No fees can be charged to the prospective
employee in connection with obtaining a position for a
foreign national with a prospective employer.
•
Advertisements that state that the EB-3 position
requires only a 12-month employment commitment. Jobs through the PERM process are required to be
permanent in nature and should not have a finite completion date3.
•
The applicant has never spoken to the sponsoring
employer, has not had any communication (written,
via telephone, or email) with the employer, and was
not part of an interview process. Many employers
sponsor and recruit foreign nationals and those applications
are valid and approvable.
In addition, the employer must publish the notice in any and
all in-house media, whether electronic or printed, in accordance
with the normal procedures used for the recruitment of similar
positions in the employer’s organization. The notice must explain
that it is being provided because the employer is filing a labor
certification.
What is Wrong with Current “Selling” of EB-3 Jobs
The way the EB-3 program is being described and offered to the
public is inconsistent with the USCIS and Department of Labor
laws and regulations. If EB-3 “for sale” programs intentionally
circumvent the legal requirements, then they are fraudulent. The
Department of Labor’s main purpose is to ensure that foreign
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The following are indicators that an EB-3 sponsorship is valid:
•
The employee is currently working with the employer
overseas or in the U.S., and the employer now wants to
sponsor him or her for permanent residence so that he or
she can permanently retain the position with the company
in the U.S.
•
The employee replied to an advertisement by the company
or a recruitment agency and was interviewed by the
company for the position – whether over the telephone or
via e-mail. They were required to discuss their skills and
experience for the position and answer questions related to
the job.
•
The employee was not asked to pay any fee for the PERM
application, legal costs for PERM, or to secure the position
with the employer.
Ismael Fernández, PhD, MBA
Founder and President
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