The Labor Certification process is for US employers who seek to admit foreign workers to the US on the condition that the employer can prove that there are no qualified US workers available who are willing to perform the work at wages that meet or exceed the current wage paid for the prospective employment position.
The labor certification program also provides foreign workers with a permanent residence or green card status. The process involves the US employer having to establish that there are no qualified US workers for the employment position offered and, if there are qualified US workers, then the US employer can not offer the employment position on a permanent basis to the foreign worker.
Labor Certification through PERM:
The PERM process involves a thorough review of the alien beneficiary’s qualifications, the position offered and the employment setting, the strategic design and requirements of the job, the detail arrangement and follow-up of the recruitment schedules, the compliance of recruitment procedures, and the proper documentation and technical check in the forms. The filing of a Labor Certification Application requires both the Attorney and Employer to work together. The general procedure is described below:
- Attorney collects information on job description and alien beneficiary’s qualifications;
- Attorney will arrange recruitment schedule and postings with the assistance from the employer for Sunday advertising, internal posting and external postings;
- Attorney obtains prevailing wage determination from the State Workforce Agency;
- Employer registers at the PERM Online System following attorney’s instruction and assigns the attorney an sub-account;
- Attorney talks with the employer and alien beneficiary. Attorney then designs job descriptions and determines the requirements for the position;
- Attorney will provide legal guidelines on recruitment process;
- Employer screens and reviews applicants, and conducts phone or on-site interviews (if necessary);
- Employer makes determination of the applications;
- Attorney will work on the recruitment reports based on the recruitment information provided by the employer;
- Attorney collects all recruitment posting for documentation;
- If there is no qualified US worker for the position, the employer is eligible to submit the PERM application;
- Attorney will prepare PERM Online form after double checking all documents;
- Attorney submits Online PERM Labor Certification Application;
- For successful cases, the Department Of Labor (DOL) usually certifies (approves) the PERM Labor Certification around 2-3 months from the date of filing. Some cases may be approved in a couple of days;
- If the DOL chooses to audit the petition, the employer must submit to the DOL the required documents within 30 days. If employer fails to submit documents within 30 days, the DOL will not only deny the specific case but may also require future applications from the same employer to go through a supervised advertisement and posting process;
- After reviewing employer’s documents submitted in an audited case, the DOL may certify the labor certification petition, deny the petition, or ask the employer to go through supervised recruitment.
The following procedural flowchart demonstrates the relationship between Labor Certification and Green Card Petitions for most EB-2 and EB-3 categories.
U.S. Employer files a PERM Labor Certification Application on Employee’s behalf
Immigration Petition filed by the U.S. Employer after the PERM Labor Certification is Approved (Form I-140 Petition)
I-485 Adjustment of Status Application filed by the Alien Employee when the Priority Date is prior to the published cutoff date (if visa number is current, I-485 may be fined with I-140 )
Once Adjustment of Status Application is Approved, Alien receives Permanent Residence (Green Card)
The labor certification process seeks to ensure that the admission of foreign workers into the US on a permanent or temporary basis will not adversely affect the employment opportunities, working conditions, and wages of US employees. However, if there are qualified US workers, the foreign employee can continue working under their temporary visa until the visa expires and thus, the foreign worker may be able to re-apply for another labor certification.
For more information regarding the Labor Certification process Contact the Immigration Attorney Marc P. Feldman.