PERM Labor Certification

Overview of Process

Labor certification is a process whereby a U.S. employer “sponsors” an immigrant for permanent US immigration, (i.e., a “green card”). Technically, a “labor certification” is a decision made by the U.S. Department of Labor (“USDOL”) that there are not enough willing, able, and qualified U.S. workers to do a job that has been offered to a foreign worker, and that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers. An approved labor certification is the first and usually most difficult step in applying for permanent United States immigration (a “Green Card”) through employer sponsorship.

The labor certification process involves an employer doing a “test” of the labor market by advertising the job and showing that the only person who meets the minimum qualifications for the job is the intending immigrant. Applications filed on or after March 28, 2005 are processed under a completely new program called “Program Electronic Review Management,” more commonly known as (“PERM”). This process is done online and has sped up the processing time of permanent US immigration.

Step 1 – Preparing the PERM Labor Certification Application and Registering the Employer

A PERM labor certification application must be filed on form ETA 9089 which states the requirements for the position that the employer is trying to fill for permanent US immigration with the intending immigrant. Every applicant, including the immigrant being sponsored, must meet the minimum requirements set out in the employer’s offer of employment. Therefore, as discussed above, the key to winning any labor certification case is in how the minimum requirements are defined. For example, an employer may require that all applicants have a certain number of years of experience in either the job being advertised or in a related job. This requirement would narrow the number of people who meet the minimum requirements. Other requirements, including knowledge of certain machines, techniques, programming languages or software may possibly be included in the minimum requirements. Again this will limit the number of people who qualify.

There is a well-established body of law as to how restrictive the employer can be in defining the minimum requirements. Our US immigration attorney at RAPA law firm works with the employer and the foreign worker throughout the US immigration process to ensure that the requirements reflect the employer’s needs and the worker’s skills yet stay within the strict boundaries set by the law. Our US immigration attorney and his staff will need the employer’s cooperation as well as the foreign worker’s cooperation to gather all necessary information.

In all PERM labor certification cases, there is a requirement that the employer pay the foreign worker the prevailing or average wage for the job being offered. The Department of Labor uses a particular survey to determine this wage and we can consult that as a source. Additionally, sometimes the employer may use a published wage survey in determining the prevailing or average wage. Our US immigration attorney at RAPA law firm will guide you through this important part of the US immigration law process. In a PERM labor certification, it is especially important that our US immigration attorney obtains wage information that will be acceptable to the Department of Labor since we will be advertising using that wage, and our advertising will not be acceptable if the wage is below the prevailing or average wage. The employer does not have to pay this wage until the foreign worker completes the immigration process and becomes a permanent resident, i.e., has a “green card”.

At the initial stage of the PERM labor certification process, it is important to get letters verifying the work experience of the foreign worker, as well as an evaluation of any foreign degrees. The US Citizenship and Immigration Service (USCIS) will need these letters later in the US immigration process, and it is important that they exactly match the foreign workers skills as reflected on the application.

At the same time that the requirements are being developed, our US immigration attorney will work with the company to make sure that the company is registered in the PERM labor certification database. The PERM labor certification system requires that company information including tax ID number be input into the PERM labor certification system to ensure that the company is a valid employer for US immigration purposes. In addition to the PERM labor certification database, some states also require that the company register and post the job on their database. Once all the information is obtained and the job requirements are defined, our US immigration attorney at RAPA law will advertise the job opportunity.

Step 2 – Advertising the Job Opportunity

PERM labor certifications require that the employer advertise the job extensively in the six (6) month period prior to filing. The regulations require ads in newspapers, online ads and other forms of ads. US immigration law also requires a job posting at the place of intended employment for 10 business days. The format, extent and type of advertising varies depending on the type of job involved. Our US immigration attorney at RAPA law is familiar with the requirements and will guide you in this process.

Step 3 – Interviewing

In a PERM labor certification, responses to the advertisement in the form of resumes and/or letters of interest will be sent to the employer. If any U.S. workers apply, the employer must contact them within ten (10) days if they qualify for the job. Some applicants may be rejected on the basis of their resume only. However, this process must be conducted very carefully in consultation with the US immigration attorney at RAPA law and our staff, as it will be strictly reviewed by the United States Department of Labor.

All communications with prospective applicants must be thoroughly documented. Our US immigration attorney will guide the employer through this search, as there are many differences between the employer’s normal hiring process and the “test of the labor market” needed in a labor certification. It is important to remember that, in the regular hiring process, the employer is looking for the best possible candidate, and therefore typically uses subjective criteria to make a hiring decision, i.e. “I liked this person, I think he/or she has the right personality for the job.” In a PERM labor certification case, subjective requirements generally cannot be used and the case can be lost if one job applicant meets the minimum qualifications on the PERM labor certification application. To win the case, it is important that the US immigration attorney and staff at RAPA law work closely with the employer.

When interviewing candidates, the employer must “go the extra mile” to ensure that all candidates are given an adequate chance to apply. For example, in the normal hiring process, if an applicant does not show up for an interview, the employer does not typically follow up with the applicant. In the PERM labor certification process, the employer should make attempts to ensure that the applicant’s failure to attend was or was not excusable (i.e., due to car failure, wrong directions, etc).

After the interviewing is concluded, our office will draft a report of the results. US immigration law requires that this report be kept by the employer and in case of an audit by the US Department of Labor.

Step 4 – Interviewing

Filing a PERM Labor Certification Application with the US Department of Labor

Once the report is completed, our US immigration attorney will send the company a copy of the report, resumes, newspaper ads, online postings and all other recruitment results. Thirty (30) days after the last recruitment step is taken, the case may then be filed online with the US Department of Labor. When the USDOL receives the case, it will stamp it with the date it was received, and this date becomes the “priority date” for the case. This date is important in US immigration law as it will determine when the foreign worker will be able to take the last step of filing for a green card on form I-485 for themselves and their family members.

The USDOL will check whether the employer was offering the average or prevailing wage for the job. The USDOL will also decide whether the employer’s requirements for the job are legal. If the USDOL believes that everything was done properly and there were no other applicants who met the requirements, it will approve the case, issuing a document called a “labor certification”. On that basis, the employer may then file an immigrant visa petition on form I-140 for the foreign worker. If the USDOL believes that there are problems with the case, they will either deny the case or send an audit letter to the employer seeking additional information. The employer will then have to respond to the audit and also show the USDOL the results of the recruitment, i.e., the ads, the resumes received and why each was rejected. A significant percentage of PERM labor certification cases are audited. If the employer successfully responds to the audit, the case with be approved.

Step 5 – Preparing and Filing the I-140 Immigrant Visa Petition

If the USDOL certifies the PERM labor certification application, the employer may then file an Immigrant Petition (I-140) with the USCIS in one of the employment based green card categories. Our US immigration attorney will submit the I-140 application along with proof of the foreign worker’s job experience and proof that the employer’s company can financially support the wages to be paid to the foreign worker from the time the PERM labor certification application was filed up to the time of filing the I-140. If the USCIS approves the I-140, the foreign worker may proceed to the final step in the US immigration process, applying for permanent residence (“green card”), either in the United States or abroad.

Step 6 – Processing the “Green Card”

Once the I-140 (immigrant visa petition) is approved for US immigration, the immigrant may either apply for their green card in the United States, a process called “adjustment of status” or apply for their green card at and embassy or consulate. Both procedures discussed below.

Step 6a – Processing and I-485 for Permanent Residence (“Green Card”) in the United States

If the US immigration service approves the I-140 Immigrant Petition, the foreign worker and his/her family members may then file an Adjustment of Status application (I-485) to obtain a “green card,” or Lawful Permanent Resident (LPR) status as long as the visa category they are in is available. There are backlogs and wait times in the various US immigration categories and there may be a significant waiting period before a foreign worker can even file an I-485. The foreign worker’s spouse and children under 21 are eligible for permanent resident status, i.e., a “green card”, and can file I-485’s along with the foreign worker.

Along with the I-485, our US immigration attorney and staff at RAPA law will file an application for advance parole for those who are eligible, which will give the foreign worker and dependents permission to travel outside of the U.S. during green card processing. In addition, the US immigration attorney will also file applications for work permits giving the foreign worker and dependents permission to work for any employer while the US immigration service processes the I-485.

Once the I-485 is approved, the foreign worker and dependents are considered to be permanent residents of the U.S. The LPR cards, (i.e., “Green Cards”), once approved, will be sent to the foreign worker and dependents by mail. The applicants become permanent residents of the United States on the date of approval of the I-485, and may apply for United States Citizenship four years and nine months from the date.

Step 6b – Processing for Permanent Residence (“Green Card”) at an Embassy or Consulate

Alternatively, a foreign worker may process their green card at the intending immigrant’s home embassy or consulate. In this case, once the I-140 is approved, the intending immigrant will need to get an interview scheduled and submit forms OF-230 parts I and II along with other evidence. The intending immigrant may, if legally in the United States, wait here until the interview date and then will need to spend about a week in her/her home country taking medical exams and otherwise preparing for the interview. At the interview, the intending immigrant’s passport will be stamped with an immigrant visa, and when the immigrant enters the United States he/she becomes a permanent resident and will receive a “green card”.

For information on how one of our US Immigration Attorneys at Robert A. Perkins & Associates can help you win your PERM Labor certification case, please contact us.

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