The Labor Certification process, commonly known as the Program Electronic Review Management (PERM), is one in which a U.S. employer sponsors an employee’s immigration (aka the Green Card) to the United States.
Before a U.S employers can file an immigration petition on behalf of a foreign worker, the U.S. Department of Labor (DOL) must approve a labor certification. The employment-based preference categories that require PERM labor certifications are EB-2 (excepting National Interest Waiver cases) and EB-3.
Employers must first actively make recruitment efforts before filing a Labor Certification Application (LCA). While any job can qualify for Labor Certification, the process is designed to ensure that foreign nationals cannot take jobs from qualified U.S. workers. Employers must advertise and post the position and offer it at the prevailing wage for a minimum of thirty (30) Days. Recruitment efforts can be demonstrated through newspaper sheets, website print outs, and job offers.
Then, the employer must request a prevailing wage from the National Prevailing Wage Center (NPWC).
Once the employer has documented these recruitment efforts, he and she can file for labor certification using ETA Form 9089. Employers must describe on the form the job duties, educational requirements, training, experience, and other special skills that the employee must possess to perform the work. The wage offered must be the prevailing wage.
According to the PERM standard, Labor Certification will be granted if there are no U.S. workers able, willing, qualified, and available to accept to accept the job at the prevailing wage in the area of intended employment, and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. Once granted, labor certification has a validity period of 180 days and will expire if not submitted to USCIS within this period.
Once the case is certified by DOL, the employer can file an I-140 (immigrant) petition with the U.S. Citizenship and Immigration Services (USCIS).
Candidates must ensure appropriate follow-up: maintaining proper contact, resume considerations, and interview scheduling.
Employers must respond to wage requests, both those provided on the U.S. Bureau of Labor Statistics’ Occupational Employment Statistics site (http://www.bls.gov/oes/) which are survey driven. Some employers also have difficulty with following through on the three forms of wage review at the Prevailing Wage Center or the US Department of Labor’s Board of Alien Labor Certification Appeals (BALCA).
Employers must fulfill the PERM’s newspaper advertising requirements and the ten additional recruitment steps. Legal compliance is challenging as it involves apprising U.S. workers about the job opportunity via expensive newspaper ads and ensuring that each ad presents the right amount of detail. Moreover, petitioners are often unsure about the number of required posting days for the recruitment notice, what must be stated in the recruitment report, and other specific concerns.