As part of the employment-based Green Card process, an employer must generally secure an approved permanent labor certification from the U.S. Department of Labor (DOL). Once this has been done, the U.S. based employer can file an immigrant petition with U.S. Citizenship and Immigration Services (USCIS).
The DOL issues permanent labor certifications through a process called the PERM labor certification process.
1. What Is PERM Labor Certification Process?
The Program Electronic Review Management System (or PERM) labor certification process is aimed at protecting the working conditions and wages of U.S. workers holding similar jobs. As part of the employment-based Green Card process, the employer must show to the DOL, through the Green Card PERM process, that there are no U.S. workers who are fully qualified, able, willing and available to accept the job at the prevailing wage for the proposed position in a specific industry. The employment of foreign workers must not have a negative impact on the employability of current U.S. workers.
DID YOU KNOW?
The PERM labor certification process is fully automated and is designed to expedite the foreign labor certification process. Computers scan the attestation forms filed by employers documenting their compliance with all labor certification requirements. This reduces the amount of paperwork required and shortens the timeframe necessary to process the documents. The process is highly standardized, with few deviations.
2. PERM Labor Certification Application
The PERM labor certification application is submitted via an Application for Permanent Employment Certification – ETA Form 9089. The application for permanent labor certification gives a complete description of the job duties of the proffered job, lists any and all educational, training and/or experience requirements, outlines any special skills that are required and provides a detailed summary of the prospective immigrant’s qualifications. If satisfied, the DOL will certify the PERM labor certification.
Once certified, the DOL will send the employer or the Attorney of Record, the certified ETA Form 9089. The certified ETA Form 9089 must be submitted to USCIS within 180 days of certification, which is the date when the labor certification expires.
DID YOU KNOW?
The ETA Form 9089 must be completed by the employer. While employers can file their foreign labor certification applications electronically or by mail, DOL prefers that employers file their PERM labor certification application electronically. Electronic filing not only takes much less time to complete, but it also reduces the number of errors on the form. The web-based foreign labor certification application, for example, will not be accepted if required fields are left blank.
3. Prevailing Wage Determination
Before filing an ETA Form 9089, employers must request a prevailing wage determination from the DOL’s National Prevailing Wage Center (NPWC) through the submission of ETA Form 9141.
Similar to ETA Form 9089, electronic submission of the ETA Form 9141 is strongly encouraged.
Employers must include the following information on the ETA Form 9089:
- Prevailing wage
- Prevailing wage tracking number
- SOC /O* NET (OES) code
- Occupation title
- Skill level
- Wage source
- Determination date
- Expiration date
4. Recruitment Steps To Be Completed Before Labor Certification Filing
In order to show that there are no available, willing or able U.S. workers, the PERM labor certification process requires employers to conduct a thorough recruitment search prior to filing the foreign labor certification application.
The PERM regulations establish the types of recruitment that must be performed by the employer. The regulations establishes 2 different standards for recruitment based on the type of occupation.
- If an occupation is listed in Appendix A of the preamble of the final PERM regulations, employers must use the standards for recruitment of professional positions. These standards pertain to job opportunities where a bachelor’s or higher degree is typically required.
- For occupations that do not normally require a minimum of a bachelor’s degree, employers are permitted to recruit under the requirements for non-professional occupations.
5. Recruitment Report
After the recruitment is complete, the employer must complete a Recruitment Report.
All U.S. applicants must be placed into a category that best describes the lawful job-related reason for their rejection, and the number of applicants rejected in each category must be provided by the employer.
Additionally, most of the recruitment must be completed at least 30 days before the PERM labor certification can be filed and all recruitment must have taken place no more than 180 days before the filing.
My Case Scenario
Yumi is a Japanese national. She was trained for years as an architect and recently landed a great position with a firm in Seattle. The company had tried to fill the position for over 8 months with no success, even after they ran advertisements in the local newspapers and in trade journals. She has far surpassed the expectations of the partners, and they are very impressed with her work. During a recent meeting, they unanimously elected to pursue a green card for her. While conducting their initial research, they discovered that they must complete a foreign labor certification for her before filing with the USCIS.
As they examined their files, they were thankful that they saved every resume they received throughout the entire process. In addition, the interviewers provided excellent notes detailing why each applicant was not qualified. They started assembling a list of the remaining requirements that must be fulfilled saving a lot of time in the PERM process.
To keep the complex foreign labor certification process unproblematic, it is critical that every statutory guideline is followed to the letter. This is the only way of receiving a successful Green Card labor certification without the frustrating delays. If the DOL determines that the employer must submit additional information, or carry out additional recruitment steps, such cases may receive an audit and/or supervised recruitment
If you have questions about the foreign labor certification requirements or need help to navigate through the complex PERM labor certification process, please consult a VisaPro immigration attorney. We will be happy to guide you through the process.
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