Every year, about one million people obtain U.S. permanent residence (they get a “green card”). Once they have permanent residence, they are legally authorized to permanently live and work in the United States.
There are a few ways to qualify for a green card. One of them is through sponsorship by an employer. In time the employer will file an application with s U.S. Citizenship and Immigration Services (USCIS) for a visa for the employee, but there is a critical step that has to come first. In order to hire a foreigner for a job, the employer must demonstrate that there are no U.S. workers interested in the job, and thus it’s necessary to hire someone from outside the country. This process is known as obtaining “labor certification.”
What is PERM Certification?
Under the system that existed before Program Electronic Review Management (PERM) was enacted in 2005, applications for labor certification could take more than a year to go through. They were first filed with the state departments of labor (e.g., California Labor and Workforce Development Agency), which painstakingly scrutinized employer applications before forwarding the applications to the U.S. Department of Labor (DOL) for final review and approval.
Under the PERM system, applications are now filed directly with the U.S Department of Labor, which approves it following confirmation that the employer exists, unless certain red flags result in an audit. The PERM system has a goal of approving applications within only 45 to 60 days. In general, the DOL works to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages and working conditions of U.S. workers.
Step 1: Search for Workers
The PERM process begins with the employer conducting a job search in the local area to see if any American workers apply for the job and are qualified. Employers can conduct this search by looking into the following:
- Radio and/or television advertisements
- Local newspapers
- The company’s website
- Employment organizations or job search websites
- Labor or employment fairs
The job offered must be full-time. The job cannot be tailored with the applicant in mind, such that only that applicant, with their particular experience and background, would be able to qualify.
Step 2: Request a Prevailing Wage Determination from the DOL
In order for the offered position to qualify as being open to U.S. workers, the salary to be paid must be high enough to attract American applicants. The DOL will determine this figure. The employer must provide all job details online to DOL to obtain a Prevailing Wage Determination (PWD).
The salary will be established based on the prevailing wage in the local jurisdiction for the job, the qualifications that an applicant must have, and the functions of the job. Once DOL determines the prevailing wage, this will be the wage that the US employer or business must pay the foreign national worker at the time the alien worker becomes a permanent resident.
Step 3: Recruitment Process
Once the US employer or company has received the prevailing wage determination, job advertisements must be placed to test the labor market. This process generally takes about two months. If the advertising campaign turns up an American worker who is interested and qualified, the DOL will stop the labor certification process. The employer does not have to hire the American worker, of course, but it cannot renew its efforts to get a labor certification for the foreign national it wants to hire for at least 6 months.
The specifics of the recruitment process will depend on if the job is professional or nonprofessional. Professional jobs are jobs that require at least a bachelor’s-level college degree or its equivalent. Nonprofessional jobs do not require a degree. An immigration lawyer can confirm if the job is professional or nonprofessional if you are unsure.
If it is a professional job, the employer must do the following:
- Place a job order with their state department of labor. This order must be open for at least 30 days
Place a job order in a Sunday newspaper for 2 consecutive Sundays. One of these Sunday newspaper ads can be replaced by an advertisement in a relevant professional journal
- Additionally, advertisements must be placed in at least three of the following:
- At a job fair
- At a university campus recruiting event
- In a college job placement office
- On the employer’s website
- On a job search website
- Through a trade or professional organization
- Through a private employment firm (a headhunter)
- Through an employee referral program
- In other local or ethnic newspapers
- On radio and/or television
Nonprofessional jobs have similar requirements but need only be advertised in a local newspaper for 2 consecutive Sundays. The other advertising requirements don’t apply.
There must be a gap of at least 30 days between the end of the recruitment efforts and the time the employer files the federal PERM application. This is to ensure that any American applicants have adequate time to submit their application. The employer can be audited for compliance with the recruiting requirements, and thus should keep copies of all of the documents reflecting the job placement for 3 years.
Step 4: Submit Form ETA-9089 to the U.S. Department of Labor
Form ETA-9089 is the PERM labor certification application. If the Department of Labor approves it, the petitioning employer may then file a permanent residence application with United States Citizenship and Immigration Services. If the Department of Labor does not approve it, the employer may not continue with the green card application process.
What Documents Are Needed For a PERM Labor Certification?
To get the PERM labor condition application approval, it is recommended that the application be submitted with copies of the following:
- A contract between the employer and the employee, setting forth the job conditions
- The prevailing wage request paperwork
- Copies of the newspapers where the job advertisements ran
- The job order submitted to the state department of labor
What Does the Employer Do After Receiving the Approved Labor Certification?
The DOL certifies the job, not the foreign worker. An approved labor certification is not evidence that DOL has certified that the beneficiary named on the certification qualifies for the position. Only USCIS has the authority to do that. An approved permanent labor certification means that the employer has made a good faith effort to test the labor market and has demonstrated to DOL that there were no qualified, able, and available U.S. workers for the position.
At the time the employer files an application for permanent residence for the employee, USCIS will determine whether the beneficiary meets the minimum education, training, and experience requirements of the permanent labor certification. An immigrant petition for a preference classification is not approvable if the beneficiary was not fully qualified for the classification by the filing date of the permanent labor certification (the petition’s priority date).
Should I Seek an Attorney’s Advice?
Advice from a qualified, experienced immigration attorney will help clarify the complex process involved in PERM labor certification.
An attorney can assist in the process of preparing the labor certification paperwork and can guide the process of recruiting for the position. Also when the labor certification is received, they can arrange for the permanent residence visa application to be prepared and filed.
