With certain exceptions, noncitizens who wish to obtain U.S. permanent residency (“a green card”) through employment must obtain a labor certification from the U.S. Department of Labor (DOL). In approving a labor certification, the DOL is certifying that there are not sufficient U.S. workers able, willing, qualified and available and that employment of a foreign worker will not adversely affect the wages and working conditions of U.S. workers.
Since 2005, labor certifications have been issued through an electronic program entitled “Program Electronic Review Management” or “PERM.” The PERM process can be difficult to understand at first but it is important since it is the first step for many in the employment-based green card process. But who is this process for, who has to take it up with the United States government, and how does the process ultimately work? We’ll explore the steps to PERM Labor Certification below.
Employers who are looking to hire foreign nationals to work permanently in the U.S. first have to go through the PERM labor certification process. Specifically, PERM is required for foreign nationals seeking to immigrate under the second (EB-2) and third (EB-3) employment-based preference categories.
It is important to note that certain individuals, such as nurses and physical therapists, do not need to go through the standard PERM process. Additionally, the labor certification requirement may be waived for certain individuals if it is in the national interest to do so.
The PERM Labor Certification process is complex so it is helpful to break it down into steps. The first step is to secure an offer of employment from a U.S. employer. A U.S. employer can include a corporation, firm, association, or an individual person, and there is no requirement that the company be very large or in existence for many years. It is important to keep in mind that the offer of employment is prospective – one does not need to be currently employed with the sponsoring employer, or even need to be in the United States to begin the process.
Once the offer of employment is confirmed, the employer must request a prevailing wage determination from the DOL. This is a crucial step as the prospective employer will need to pay the foreign worker the “prevailing wage” for the position being offered. The wage amount will depend on the occupation, geographic location, and level of the job offer (e.g., an entry-level job will have a lower prevailing wage than a management position). Please note that the prevailing wage that is offered does not actually need to be paid to the foreign worker until he or she becomes a permanent resident. For example, if the prevailing wage is $25 per hour and the foreign worker is already employed with the company, the employer can pay the foreign worker less than this amount up until the time the worker receives permanent residency. However, the employer must be able to demonstrate that it has the financial ability to pay the offered wage to the foreign worker.
Another critical step in the PERM process is recruitment. In order to demonstrate that the foreign worker will not be displacing U.S. workers, the employer will need to test the labor market by conducting a bona fide recruitment for the position offered. The employer does this by placing advertisements in the Sunday newspaper, with the state workforce agency, as well as at the place of intended employment. For positions that normally require a bachelor’s degree or higher, the employer must place additional advertisements. For example, ads may be placed on the employer’s website, a job search website, with a trade or professional organization, at a job fair, etc.
Upon the completion of the recruitment stage and determination that there are no qualified or willing U.S. workers, the employer must submit an “Application for Permanent Employment Certification” to the DOL. The application is filed online and there is no fee to process the application. DOL processing times vary, but applications are typically adjudicated within several months.
This is a brief overview of what U.S. companies can expect when seeking a PERM Labor Certification. The actual process is very technical and will include plenty of paperwork and a deep investigation into the job offer and employer’s minimum requirements for the position. As you move through this process, it is important to keep in mind that PERM Labor Certification is just one step of the employment-based green card process. Let’s explore the remaining steps below.
The PERM labor certification is a prerequisite to obtaining permanent residency through an employer, but does not, in and of itself, confer lawful status or grant employment authorization. After the PERM Labor certification is approved by the DOL, the next step for the employer is to file an immigrant petition with the U.S. Citizenship & Immigration Services (USCIS). This petition must be filed during the validity period of the certified PERM. In evaluating the immigrant visa petition, USCIS will examine whether the employer can show the ability to pay the wage listed on the labor certification, and whether the foreign worker possesses the qualifications for the position offered.
After the immigrant visa petition is filed, the foreign worker may, if in the United States, then file an application for adjustment of status to permanent residency (the “green card application”). If the foreign worker resides outside of the United States, he or she will obtain the immigrant visa through the U.S. consulate in his or her home country. When a foreign worker can file the adjustment of status application depends on whether the immigrant visa is available for issuance by the U.S. Department of State. Under the current U.S. immigration quota system, there could be a wait for the immigrant visa to be current, depending on the visa preference category and the foreign worker’s country of citizenship.
The PERM labor certification process is multi-faceted and complex. Mistakes made during the process can be detrimental. That’s why it’s important to be represented by knowledgeable and highly competent immigration counsel throughout the entire PERM process. For more information, contact Reeves Immigration Law Group. Consulting with experts will help you understand what’s involved in the PERM process and how to actually begin the process of sponsoring a foreign national to live and work permanently in the United States.