At times, U.S. companies encounter difficulty in locating suitable candidates for certain positions which they need to fill and that are crucial for their business growth. One advantageous approach is to employ foreign workers who possess the necessary qualifications for the job. Fortunately, the U.S. immigration system provides a solution, which includes the labor certification process, also known as PERM.
Before certain foreign nationals can be granted an employment-based immigrant visa, companies must initiate the PERM process as the initial step. Nevertheless, this process can experience difficulties, misunderstandings, and unintentional mistakes that may result in delays. Prolonged delays can lead to financial losses and negatively impact your business operations.
At Heckler Law Group, our attorneys are experienced in navigating the PERM process and the immigration system.
The Labor Certification/PERM Process
If a U.S. employer intends to hire a foreign national, certain employment-based visas require an approved labor certification from the Department of Labor (DOL). The certification confirms two things: that there are no qualified and available U.S. workers to fill the position and that hiring a foreign worker won’t have a negative impact on wages or working conditions of U.S. workers in similar roles.
The labor certification process is the first step in sponsoring a foreign worker and does not provide authorization for the foreign worker to live and work in the U.S. Once the labor certification is approved, the employer must apply for an immigrant visa before the foreign worker can seek a green card.
PERM is an online system used by employers to apply for permanent labor certification. It can take up to 18 months to complete, with much of that time spent ensuring no qualified workers are available in the U.S.
To apply for labor certification, an employer must:
- Create a detailed job description that outlines the duties and minimum requirements of the role. The description must be carefully crafted, as the employer cannot obtain an approved labor certification if a U.S. worker who meets the requirements applies for the job.
- Secure a prevailing wage determination from the DOL, which confirms the appropriate wage for the job position and its location. Employers are required to pay the foreign worker at least the prevailing wage.
- An employer must take “good faith” measures to recruit a U.S. worker for the job position. This involves conducting a range of recruitment activities, such as advertising the job through the appropriate state workforce agency and newspaper ads.
- Submit a Form ETA 9089 to the DOL, which is the Application for Permanent Employment Certification. This form includes information on the minimum requirements of the job position, the recruitment process, and the foreign worker’s particulars, among other relevant details.
This process requires strict adherence to specific timelines on the part of the employer.
Outcome of the Labor Certification/PERM process
The DOL has the authority to either approve or deny the application, or conduct an audit by requesting additional evidence or information.
Once the labor certification is approved, the employer must then file an immigrant petition with the USCIS to request a visa for the foreign worker.
If a visa is currently available for the employee’s filing category and nationality, along with the employer’s immigrant petition, we would file an application to adjust status to US permanent resident so that the immigration service can process both simultaneously. Nationals of certain countries may have to wait for some time, if a visa is not immediately available, after approval of the immigrant petition before being able to file the application to adjust status to US permanent resident.
Upon USCIS’ approval of the adjustment of status application, the employee will be granted permanent resident status (green card).
Which Professions Qualify for Labor Certification?
The requirement for labor certification through the PERM process is based on the visa type and not necessarily the profession. Only specific employment-based visas necessitate labor certification.
This particular visa is categorized as an employment-based, second-preference visa, which is intended for individuals with advanced degrees or equivalent qualifications (i.e. a bachelor’s degree and five years of experience), or those who possess exceptional abilities in the fields of business, science, or the arts.
The term “exceptional ability” refers to an extraordinary level of expertise that is significantly higher than what is typically encountered, and may include individuals such as actors, musicians, doctors, veterinarians, or lawyers.
The third-preference visa in the employment-based category is intended for:
- Professionals who hold a bachelor’s degree or equivalent, which is typically required for the job.
- Skilled workers whose roles require at least two years of experience or training.
- Unskilled workers performing labor that requires less than two years of training or experience. This category does not cover seasonal or temporary jobs.
Immigration Categories That Do Not Require Labor Certification
Most employment-based visas, including EB1 visas for foreign nationals with extraordinary abilities, outstanding researchers or professors, and intracompany managers or executives, EB4 visas for special immigrants like religious workers, and EB5 visas for foreign entrepreneurs/investors, do not require labor certification.
Labor certification is also not required for workers who migrate to the U.S. via family-based immigration petitions, are the beneficiaries of National Interest Waivers (NIW), or are immigration applications qualifying for Schedule A occupations such as physical therapists, professional nurses, scientists, and artists.
Considerations Employers Should Keep In Mind When Sponsoring Foreign Nationals
Here are some factors that employers should consider when sponsoring foreign nationals through the labor certification/PERM process, which is complex, expensive, and time-consuming:
- The employer cannot file a labor certification application if qualified U.S. workers would accept the position after applying during the advertising process.
- Changes in the domestic labor market can affect prevailing wage determinations and the availability of U.S. applicants for a role.
- Laying off U.S. workers in the six months before applying for labor certification can make the process more challenging, as additional information and documentation must be provided.
- Employers are required to pay for the PERM process, and it is against DOL regulations to request an employee to pay or reimburse the employer.
- An experienced business immigration lawyer can assist with navigating the labor certification process and ensuring compliance with timeframes and documentation requirements.
Begin Your Labor Certification/PERM Process
At Heckler Law Group, we understand the importance of the labor certification/PERM process and the impact it can have on our clients’ lives and businesses. That’s why we offer comprehensive and personalized services to ensure that the process is handled efficiently and effectively.
Our team has years of experience handling labor certification cases and is well-versed in the latest regulations and requirements. We work closely with our clients to gather all the necessary information and documentation, and we prepare and submit the application on their behalf.
We understand that every labor certification case is unique, and we tailor our services to meet our clients’ specific needs. Whether you are an employer looking to sponsor a foreign national or an individual seeking to obtain a green card through your employer, we are here to help.
Our commitment to our clients doesn’t stop with the submission of the labor certification application. We continue to provide support and guidance throughout the entire process, including responding to any requests for additional information or documentation from the DOL.
At Heckler Law Group, we are dedicated to helping our clients achieve their immigration goals. Contact us today to schedule a consultation and learn how we can assist you with your Labor Certification/PERM needs.