How to get a Green Card through a PERM Labor Certification

How to get a Green Card through a PERM Labor Certification
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Skilled foreign workers can use the PERM labor certification to advance their careers in the United States. This certification can also help them become permanent residents. Employers can help international employees obtain green cards. The procedure is supervised by the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS).

Whether you are an employer seeking to retain valuable talent or a foreign worker exploring long-term employment opportunities, this guide will help you understand the PERM labor certification process, including requirements, procedures, and best practices for a successful application.

Understanding the PERM Labor Certification

The PERM labor certification is a crucial component of the employment-based green card process. Its primary objective is to ensure that the admission of foreign workers does not adversely impact job opportunities, wages, and working conditions for U.S. workers in the same occupation and geographic region.

Through this rigorous process, employers must demonstrate their inability to find qualified, willing, and available U.S. workers for the specific job role, despite conducting extensive recruitment efforts. By obtaining a certified PERM application, employers can proceed with sponsoring their foreign employees for permanent residency, provided they meet all eligibility criteria.

Do you qualify for PERM Labor Certification?

Before starting the PERM labor certification process, it’s important to check if the employer and employee meet the basic requirements. Here are the key considerations:

Employer Requirements

  • The employer must be a legitimate U.S. entity with a valid Federal Employer Identification Number (FEIN) and a physical location within the United States where employees can be assigned.
  • The employer must have the financial capability to pay the required wage for the position, as determined by the prevailing wage determination issued by the DOL.
  • The job opportunity being offered must be a permanent, full-time position with no predetermined end date.

Employee Requirements

  • The foreign worker must possess the necessary qualifications, such as education, experience, and skills, as specified in the job requirements outlined in the PERM application.
  • The employee’s immigration status should allow for the pursuit of permanent residency through employment-based sponsorship.

It is crucial to carefully evaluate these eligibility criteria before proceeding with the PERM labor certification process, as failure to meet these requirements can lead to delays or outright denial of the application.

The PERM Labor Certification Process: A Step-by-Step Guide

The PERM labor certification process is a multi-faceted endeavor, involving several key stages. Let’s explore each step in detail:

Step 1: Defining the Job Opportunity

The first step in the PERM labor certification process is to clearly define the job opportunity being offered. This involves:

  • Developing a comprehensive job description that outlines the specific duties, responsibilities, and requirements for the position.
  • Identifying the minimum educational qualifications, work experience, and specialized skills necessary to perform the job effectively.
  • Determining the appropriate occupational classification according to the DOL’s regulations, such as non-professional, professional, or college/university teacher positions.
  • Employers must ensure that the job requirements are consistent with industry standards and align with the actual needs of the position. Any discrepancies or unrealistic requirements may raise red flags during the review process and potentially lead to denial of the application.

Step 2: Obtaining a Prevailing Wage Determination

Before initiating the recruitment process, employers must obtain a prevailing wage determination (PWD) from the DOL’s National Prevailing Wage Center (NPWC). The PWD establishes the minimum wage that the employer must pay the sponsored foreign worker, based on the job duties, requirements, and geographic location of the position.

To secure the PWD, employers must submit a detailed request to the NPWC, providing information about the job title, duties, work location, education and experience requirements, and any other relevant details. The NPWC will analyze this information and issue a PWD that reflects the average wage paid to similarly qualified workers in the same occupation and area.

Step 3: Conducting Recruitment Efforts

One of the core components of the PERM labor certification process is the requirement for employers to conduct extensive recruitment efforts to demonstrate their inability to find qualified U.S. workers for the position. This step is crucial in protecting the interests of the domestic workforce and ensuring that foreign workers are not displacing available and willing U.S. candidates.

The recruitment process typically involves the following steps:

  1. Placing job advertisements in newspapers of general circulation in the area of intended employment, typically on two different Sundays.
  2. Posting the job opportunity on the employer’s website and other relevant job boards or professional associations.
  3. Filing a job order with the state workforce agency (SWA) serving the area of intended employment.
  4. For professional positions, employers may be required to utilize additional recruitment methods, such as job fairs, on-campus recruitment, or professional journals.

During the recruitment period, employers must diligently review and consider all applications received from U.S. workers who meet the minimum qualifications for the position. Detailed records of the recruitment efforts, including copies of advertisements, resumes received, and interview notes, must be maintained for potential audits or verification purposes.

Step 4: Observing the Cooling-Off Period

After completing the recruitment process, employers must adhere to a mandatory cooling-off period, typically lasting 30 days. During this time, no further action can be taken on the PERM labor certification application. The purpose of this waiting period is to allow for any additional applications or expressions of interest from qualified U.S. workers to be received and considered.

Employers should use this time to carefully review and document all applications received, conduct interviews if necessary, and make a final determination regarding the availability of qualified U.S. workers for the position.

Step 5: Filing the PERM Labor Certification Application

Once the recruitment efforts and cooling-off period have been completed, employers can proceed with filing the PERM labor certification application (Form ETA-9089) with the DOL’s Office of Foreign Labor Certification (OFLC).

The application requires detailed information about the job opportunity, the recruitment efforts undertaken, the prevailing wage determination, and the qualifications of the foreign worker being sponsored. Employers must also attest that they have followed all applicable regulations and conducted a good-faith recruitment process.

Depending on the complexity of the case and the volume of applications received by the OFLC, the processing time for PERM labor certification applications can vary. It’s a good idea to hire an experienced immigration lawyer. They can help ensure your application is completed correctly and submitted on time. This will decrease the likelihood of encountering any issues.

Step 6: Addressing Potential Audits or Supervised Recruitment

In some cases, the DOL may conduct an audit or require supervised recruitment for a PERM labor certification application. Audits are typically random and involve a thorough review of the employer’s recruitment efforts, job requirements, and the qualifications of the sponsored foreign worker.

If an audit is initiated, the employer will be required to provide supporting documentation, such as copies of advertisements, resumes received, interview notes, and other relevant materials. Failure to provide adequate documentation or evidence of compliance with the recruitment requirements may result in the denial of the PERM labor certification application.

Supervised recruitment, on the other hand, is a process in which the DOL closely monitors and oversees the employer’s recruitment efforts. This may involve providing specific instructions for advertising, reviewing resumes, and conducting interviews under the DOL’s supervision. Supervised recruitment is typically required in cases where the employer has a history of non-compliance or when the DOL deems it necessary to ensure the integrity of the recruitment process.

Step 7: Obtaining PERM Labor Certification Approval

Upon successful completion of the PERM labor certification process, the DOL will issue an approval notice, also known as a certified PERM labor certification. This certification serves as evidence that the employer has met all the requirements and has demonstrated the unavailability of qualified U.S. workers for the position.

The certified PERM labor certification is a crucial document that must be submitted to the USCIS as part of the next step in the green card process: the I-140 Immigrant Petition for Alien Worker.

The Next Steps: Filing the I-140 Immigrant Petition and Adjustment of Status

With the certified PERM labor certification in hand, the employer can proceed with filing the I-140 Immigrant Petition for Alien Worker with the USCIS. This petition serves as the employer’s formal request to sponsor the foreign worker for permanent residency.

The I-140 petition requires the employer to provide evidence of the foreign worker’s qualifications, as outlined in the PERM labor certification, as well as proof of the employer’s ability to pay the required wage. Additionally, the employer must include documentation supporting the job opportunity, such as the job description, prevailing wage determination, and any other relevant materials.

Once the I-140 petition is approved, the foreign worker may be eligible to apply for an adjustment of status (Form I-485) if they are already present in the United States in a valid nonimmigrant status, such as H-1B or L-1. Alternatively, if the foreign worker is outside the U.S., they may pursue consular processing to obtain an immigrant visa and enter the country as a lawful permanent resident.

It is important to note that the availability of immigrant visas is subject to annual quotas and may vary depending on the foreign worker’s country of birth and the employment-based preference category. In some cases, there may be significant backlogs or waiting periods before an immigrant visa becomes available, even after the I-140 petition is approved.

Seeking Professional Guidance: The Role of Immigration Attorneys

The PERM labor certification process is complex and involves intricate legal requirements, strict deadlines, and extensive documentation. While it is possible to navigate the process independently, seeking the guidance of an experienced immigration attorney can significantly increase the chances of a successful outcome.

Immigration attorneys possess in-depth knowledge of the ever-changing immigration laws and regulations, as well as the nuances of the PERM labor certification process. They can provide valuable guidance throughout the various stages, ensuring that all requirements are met, deadlines are adhered to, and documentation is properly prepared and submitted.

Immigration attorneys can help employers and foreign workers with audits, recruitment, and other issues during the PERM labor certification process. Their expertise and advocacy can help mitigate potential risks and increase the likelihood of a favorable outcome.

Next steps

Getting a green card through the PERM labor certification process is complex and requires careful planning, preparation, and following legal rules. It’s important to know the requirements and steps, but getting help from a professional is crucial. 

The PERM labor certification is important for protecting U.S. workers and allowing qualified foreign nationals to work in the U.S.

With perseverance, attention to detail, commitment to compliance, and the assistance of a licensed Immigration attorney, the dream of permanent residency in the United States can become a reality.

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