A comprehensive guide to the Labor Certification Process
Obtaining an employment-based green card is a multi-step process, one that usually begins with a job offer from a U.S. employer. One of the main hurdles in the entire process is the PERM certification process.
Obtaining an employment-based green card is a multi-step process, one that usually begins with a job offer from a U.S. employer. For many people, that’s the easy part. One of the main hurdles in the entire process is when that employer completes a PERM labor certification with the U.S. Department of Labor (DOL) on your behalf. This important and often time-consuming part of the process is a prerequisite to applying for U.S. permanent residency. This guide provides a comprehensive overview of the labor certification process and its requirements.
What is the PERM Labor Certification?
Created by the Department of Labor in March 2005, the PERM or Program Electronic Review Management System Labor Certification is a crucial step in the process of applying for an employment-based green card. The primary objective of this labor certification is to protect U.S. workers and the job market, essentially making sure that available jobs that could otherwise be filled by qualified U.S. workers are not being lapped up by foreign nationals.
Why does the application process seem so complex?
Prior to the PERM system, labor certifications involved dealing with the DOL and various related state agencies in every step of the process. This meant prolonged processing times for labor certification applications since the DOL and the state agencies did not have adequate resources for processing applications in a timely manner. In fact, processing of labor certification applications usually took a couple of years, which was basically inefficient for all parties involved.
The PERM labor certification system was designed to streamline this complicated process, with a view to cut down on the overall time needed to obtain an approved certification. Despite the new system, however, the PERM labor certification process still has a fair share of complications and rather lengthy processing times.
In any case, applicants for lawful permanent residency must go through this process before the U.S. Citizenship and Immigration Services (USCIS) can consider their application. The USCIS requires this document from all U.S. employers looking to hire prospective foreign employees and file for an immigration petition. It basically tells them that the foreign employee is not taking a job opportunity from a qualified American who needs it.
PERM Labor Certification Requirements
In order to be eligible for the PERM process, applicants must first meet the following requirements:
Applicant must have a permanent job offer from a lawful U.S. employer
The wage package offered to the applicant must be equal or above the prevailing wage for that position as specified by the Department of Labor.
The local job market must have been properly analyzed for qualified U.S. candidates. The report of said analysis must point to the fact that there are indeed no available U.S. workers who can fulfill the responsibilities of the position.
The USCIS may also ask for supplementary documentation relating to the U.S. employer’s recruiting efforts, which must be provided for the PERM application to continue. The U.S. employer must prepare and maintain an audit file with additional proof of attempts at recruitment.
The PERM applicant must be able to demonstrate the uniqueness of his or her exceptional skills, such that they cannot be duplicated by a qualified U.S. worker.
Required Documents for PERM Labor Certification Applications
Pursuant to the eligibility requirements listed above, the U.S. employer must be able to provide these documents when making a PERM application:
Local Labor Market Analysis
Prevailing Wage Request – the DOL uses the location and job requirements to determine the prevailing wage.
Job Orders with a clear outline of the job duties
Newspaper Ads or printout of the job ads as posted on the employer’s website or on that of a
U.S. Employer Audit File
Completed I-140 Immigrant Visa Petition
Completed Form ETA 9089
PERM Labor Certification Process
Applicants may be relieved to know that the U.S. employer is responsible for filing for the PERM labor certification and providing any required documents. To have a clearer idea of what it takes to obtain a PERM labor certification, let’s break down the application process into the following steps:
This initial step requires the employer to come up with a detailed job description and the minimum requirements for the position. They’ll also need to work out the recruitment steps and create a plan to address any potential issues. This process can be more complex than it might sound and usually takes a month or two to complete.
Obtaining Prevailing Wage Determination From the DOL
The prevailing wage request provides vital information to the DOL such as job duties, job requirements and the location of the worksite. Based on this information, the DOL then issues a prevailing wage determination to the employer, detailing the common wage level for that specific position and in that specific location.
Prevailing Wage Determination is a crucial aspect of the PERM process since employers are required under U.S. immigration law to pay their foreign workers at least the prevailing wage for that position. The actual amount for the prevailing wage will vary based on the location of the job. For instance, the prevailing wage for an accountant working in Los Angeles will not be the same as an accountant working in rural North Dakota.
Prevailing Wage Determination Process
Processing of prevailing wage typically takes about four months. There are several instances where it can be even longer, such as when the employer disagrees with the prevailing wage determination by the DOL and files for a redetermination or submits a new request with an adjusted job description. In June 2019, the Department of Labor rolled out a new website for prevailing wage determination requests to make the process even faster.
Ideally, employers should wait until the DOL has issued an agreeable prevailing wage before moving on to the recruitment process. If the employer needs to file the labor certification as soon as possible, they get on with the recruitment process before the DOL determines the prevailing wage. completes the determination. However, if they choose to move forward with recruitment before obtaining a prevailing wage determination, they will be unable to file the labor certification until the DOL determines the prevailing wage, per PERM regulations.
Conducting “Good Faith” Recruitment (U.S. Labor Market Test)
Once the prevailing wage determination has been completed, PERM regulations stipulate that the employer must fulfill a recruitment period in the United States to source qualified U.S. citizens who are able to fulfill the job requirements. This recruitment process should last at least 60 days.
These recruitment efforts are especially crucial since the PERM process is all about demonstrating to the DOL that there were no willing and qualified American workers who responded to the job ad. As such, the employer must conduct the recruitment efforts genuinely and place at least the three mandatory job ads:
One with the state workforce agency (SWA) where the job is located, as well as on job fairs and through employment firms
One in a major newspaper that services the location of the intended job and must be posted on two different Sundays
One at the worksite location or through an employee referral program
All these job ads must be less than 180 days old at the time of filing the PERM application, so employers should ideally place all the ads at the same time if possible. Job ads that are older than 180 days will not be accepted for PERM processing. In addition, the employer must allow for a 30-day period in which there will be no job notices and no recruitment done prior to filing the labor certification. This is the time for the employer to process all responses to the job ads.
Filing the Labor Certification
If after processing all the responses and the employer is still unable to find a suitable U.S. worker for the job, they can then file for the labor certification. This involves filing the PERM application using ETA Form 9089. This request is filed electronically on the DOL website. Adjudicating on this application can take anywhere from a few months to nearly a year or even more.
Receive the DOL's Decision on the PERM application
Note that the DOL processes labor certification requests in the order it receives them. The adjudication can come as an approval, a denial or an audit. In recent times, the DOL has been completing the initial review of labor certification requests in about two months, but there is no exact time frame, so expect it to be longer. This is the last stage in the labor certification process, though the next step will ultimately depend on the decision of the DOL.
Filing the I-140 Visa Petition
If the DOL approves the PERM labor certification request, the employer must file an I-140 immigration petition within six months. They must also be able to demonstrate their ability to pay the prevailing wage specified by the DOL and that the applicant possesses the necessary experience, educational qualifications, and relevant skills to perform the job duties.
Adjustment of Status
This is the last step to becoming a U.S. permanent resident. The Adjustment of Status process will vary depending on whether the candidate is already in the United States at the time or abroad. For instance, an adjustment of status outside the U.S. usually involves consular processing, meaning the candidate must first visit the U.S. embassy or consulate at their home country for an interview. The green card process involves filing Form I-485, Application to Register Permanent Residence or Adjust Status, with the USCIS and paying the required fees.
The main criterion for green card eligibility is that the nonimmigrant must have lived in the U.S. on nonimmigrant status for a minimum amount of years, sometimes up to 10 years. He or she should also have made at least one legal entry into the U.S. within that period. In some cases, applicants must be employed in the same field from the date of their original arrival to the States.
How long does the process take?
The time frame for the green card process may also vary, especially if the USCIS service center handling the petition has a lot of backlogs at the time. In any case, once your application has been received, USCIS will issue a priority date. You’ll then need to wait for that priority date to become current, which can take anywhere from a few months to several years.
PERM Labor Certification Costs and other Fees
The Department of Labor doesn't charge a filing fee for PERM applications. However, it ’s important to also account for additional costs, such as the job ad placements and the I-140 filing fees, currently listed on the USCIS website at $700. Keep in mind that the employer is also responsible for paying the processing fees, though the applicant can choose to pay an additional $1,225 premium processing fee to speed up the processing of their application.
The filing fees for an Adjustment of Status vary depending on the applicant’s age. Since this petition is for an employment-based green card, then the candidate will likely fall within the 14-78 age range, which comes with a filing fee of $1,140 and an $85 biometrics fee. You should note that these fees are non-refundable, even if the USCIS rejects the immigration petition or you choose to withdraw your request for any reason.
How to Handle a DOL Audit for Labor Certification
If the DOL decides to audit the labor certification, the employer will be allowed 30 days to respond. This usually happens when the DOL certifying officer is not satisfied with the information provided, by way of inconsistencies in the documentation submitted, suspicion that there are indeed available qualified U.S. workers for the position or an incomplete recruitment report.
The DOL has also been known to run random audits and all queries must be fully satisfied before the process can continue. In any case, a DOL audit usually means longer processing times, sometimes as much as 18 months. Keep in mind that the employer must respond to the audit even if they decide to withdraw the PERM application.
What about a DOL denial?
If DOL denies the labor certification, the employer can file an appeal within 30 days. There are three main ways to appeal the DOL’s decision, though it’s best to consult an immigration attorney first:
File a request for reconsideration under 20 CFR656.24(g)(1)
File a request for the Board of Alien Labor Certification Appeals (BALCA) to review the labor certification
File a request for the DOL to reconsider its decision based on a possible error on their end
If there is indeed an error on the part of the DOL, it will process the correction within a few months. However, if the denial is for a plausible reason and the employer decides to appeal, the process may take several years.
Essentially, it is possible to obtain an approved PERM labor certification in less than six months, but because of the surrounding complexities, immigrant petitions often have to wait around 9 to 12 months. That’s why it’s important to get it right the first time. Hiring an immigration attorney can help ensure this.
PERM Labor Certification Waiver
If the PERM labor certification seems a tad too overwhelming, you’ll be pleased to know that not all employment-based immigrant visas require this document. For instance, the EB-1 (first preference) visa and all its sub-categories do not require labor certification. This immigrant visa is available to foreign nationals with proven extraordinary ability in their field, as well as for managers and company executives. Other instances of PERM labor certification waiver include:
National Interest Waiver (NIW) for EB-2 immigrant visas -- Labor certification would normally be required for EB-2 visas, but if the potential employer can prove that the applicant’s work would further the national interest of the United States, then it will be waived under the National Interest Waiver program.
EB-4 immigrant visa -- This visa category caters to ministers and religious workers and does not require labor certification since the value of this line of work is arguably unquantifiable.
EB-5 immigrant visa --This visa is not employment-based but rather one that creates employment in the U.S. so there’s no need for labor certification.
Schedule A immigrant petitions -- The DOL prequalifies certain occupations due to a lack of qualified U.S. workers, so applicants under this Schedule A category need not worry about obtaining labor certification. These occupations include physical therapists, professional nurses, scientists and performing artists.
The PERM labor certification process is a crucial step towards obtaining an employment-based green card, And while this guide is aimed at helping you understand its many requirements, it is equally important to know the next steps after migrating to the U.S. Consider how your living situation will be — especially how you manage your finances and obtain certain services, especially since a U.S. credit history is usually a key requirement for securing basic necessities like credit cards, apartment rentals, student loans and even phone/internet plans.
Since your credit history from your home country doesn't follow you into the U.S., building your local credit basically means you’ll have to start from scratch. However, that doesn't mean you cannot use this foreign credit history in the U.S. The Credit Passport® by Nova Credit translates all the data from your foreign credit history into a U.S.-equivalent score, which lenders and creditors can then use to evaluate your applications for credit cards, apartment rentals, loans, car leases and other credit services.
Nova Credit also provides a full lineup of newcomer products to help ease your transition to the U.S. Get in touch with us today to learn more about the Credit Passport or visit our resource library for more comprehensive guides on navigating your new life in the States.
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