What is Labor Certification?
"Labor certification" is the most widely used employment-based opportunity for obtaining a green card. Labor certification requires a U.S. employer to prove that there are no minimally qualified U.S. workers for the position. Once the U.S. Department of Labor "certifies" this application, the employer will be able to apply to the U.S. Citizenship and Immigration Services (CIS) for permanent residency (a "green card") for the foreign employee.
Basic Requirements for all Labor Certification Applications
The labor certification application when filed under PERM procedures, several basic requirements must be met:
- Full-time employee. The employer must hire the foreign worker as a full-time employee, not part-time.
- Permanent job. The employer must be offering a permanent position. Temporary or seasonal positions do not qualify for labor certification. (Temporary or seasonal positions may qualify for a temporary work visa. They just don't qualify for permanent labor certification.)
- Reasonable job requirements. The minimum educational and experience requirements that the employer specifies for the position must be those customarily required for the occupation. These requirements cannot be tailored to the background of the employee for whom the application is filed. In addition, the employer must establish that the educational and experience requirements are not "unduly restrictive." Any unusual job requirements must be shown to be a "business necessity."
- Wage must be higher of prevailing wage or actual wage. The employer must pay at least the "prevailing" wage for the occupation in the area of intended employment, which is essentially the average wage that other employers pay for similarly qualified workers. (The prevailing wage can be determined from the Department of Labor wage statistics or from salary surveys that meet certain strict criteria.) In addition, the employer must pay at least the "actual" wage, which is essentially the same wage that this employer pays to its own employees who are similarly qualified.
What is PERM?
PERM is the U.S. Department of Labor's most recent program for permanent labor certification program. It was officially promulgated on December 27, 2004. These are some of the key points of PERM:
- PERM rules must be followed for all labor certification applications filed on or after March 28, 2005.
- The U.S. employer must pay at least 100% (instead of only 95%) of the "prevailing wage," but now four wage levels (instead of only two) will be available.
- PERM labor certifications will be filed electronically (or by mail) directly with the DOL.
- DOL has set the goal for making decisions on the electronically filed PERM applications at 45–60 days (instead of months and years under the RIR or "standard" processes).
How fast is PERM processing?
The answer is twofold. In the official introduction to the PERM regulations, DOL had set the goal for making decisions on the electronically filed PERM applications at 45–60 days. In fact, in the early days of the program, the Department of Labor was certifying applications in 3 to 4 days! Today, however, the process has become much longer. In fact, the Department of Labor is certifying applications in approximately 7 months. It is our experience that straightforward cases, electronically filed cases will continue to be processed within that timeframe. Sites like trackitt.com can assist in obtaining up to the minute processing times.
Completing the Green Card Application Process at USCIS
Once the labor certification application is "certified" (i.e., approved) by the U.S. Department of Labor, the employer files an "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and Immigration Services (USCIS) for the foreign worker. If the employee is currently in the United States, and the visa bulletin is current, the employee can also file an application for permanent residency together with work and travel authorization.
What role Will the Employer Play During this Process?
As the applicant’s employer/sponsor, the only requirement placed upon you is the willingness to leave open an offer of full time employment to the alien applicant. Our firm handles each and every aspect of the entire process. There are, however, certain things attorneys are not allowed to do by law. For example, during the labor certification process, a “recruitment period” of approximately 60 days will take place. This recruitment period can include newspaper ads, radio ads, internet ads, television ads, etc. It is possible, and even likely, that U.S. workers will send their resumes for consideration. All applicants, unless clearly unqualified, must be contacted and interviewed. Attorney’s usually provide employers with forms and letters to send to these individuals to stay in compliance with regulation.
The employer must also provide certain background information from the company. These can include company EIN numbers, prior year tax returns, current number of employees, places of doing business, prior hiring history of individuals in the same or similar position as the alien etc.
During the PERM process, there will also come a time where an online application of approximately 10 pages will need to be filled in and filed with the Department of Labor. This application will be provided to the sponsor in paper form and will require someone in the office, with hiring authority, to register online, fill in the application and submit it, electronically, for processing.
The above description of the PERM process is a brief overview of the employer’s role and the services a law firm can provide a sponsoring organization for labor certification. Our firm will walk the employee and employer through the entire process and offer a transparent and honest handling of your case.