Navigating the PERM labor certification process can be complex and daunting. You should understand numerous critical details, whether an employer or a prospective foreign worker. This article covers the top 10 frequently asked questions about the PERM labor certification process. We review the process, including the employer’s role, prevailing wage determination, recruitment steps, potential denial reasons, and next steps after approval.
1. What is the PERM Labor Certification Process?
The PERM labor certification process is a critical component of the U.S. immigration system, aimed at safeguarding the job opportunities of U.S. workers. This process requires employers to thoroughly test the local job market to demonstrate that there are no available, qualified, and willing U.S. workers to fill a specific position. Employers must follow strict advertising and recruitment procedures to ensure they genuinely seek U.S. workers before offering the job to a foreign worker. This certification is essential for employers wishing to hire foreign workers for permanent positions, ensuring that the employment of non-citizens does not adversely affect U.S. workers’ job prospects and working conditions.
2. Who is Eligible for PERM Labor Certification?
Eligibility for PERM labor certification is mainly based on the job requirements established by the employer and the foreign worker’s qualifications. The job requirements must be standard for the position and cannot be tailored to fit the foreign worker’s unique qualifications. The foreign worker must possess the necessary education, skills, experience, and other qualifications customary for the role. Additionally, the job must be offered at a prevailing wage, and the recruitment process must show that no qualified U.S. workers are available to fill the position. This ensures that the foreign worker is only considered when it is evident that the local labor market cannot fill the position.
3. How Long Does the PERM Labor Certification Process Take?
The PERM labor certification process duration can vary significantly depending on the specifics of each case and the Department of Labor’s (DOL) processing times. Generally, the process can take anywhere from six months to a year under typical circumstances. However, several factors can influence this timeline, such as the complexity of the job requirements, the thoroughness of the recruitment efforts, and the volume of applications being handled by the DOL at any given time. Additionally, if the DOL identifies any issues or requires additional information, this can lead to delays, extending the process beyond the average timeframe. Therefore, employers and foreign workers must be prepared for possible variations in processing times.
4. What is the Role of the Employer in the PERM Process?
The employer plays a pivotal role in the PERM process, undertaking several key responsibilities to ensure compliance with the Department of Labor’s regulations. First, the employer must determine the prevailing wage for the position, ensuring that it meets the local standards for similar jobs. Next, the employer is responsible for conducting extensive recruitment efforts to test the local labor market, including advertising the job and interviewing U.S. applicants to confirm that no qualified U.S. workers are available. Once these steps are completed, the employer must accurately complete and file ETA Form 9089, which officially requests labor certification. Additionally, the employer must maintain a comprehensive audit file containing all documentation and evidence of the recruitment process, as this may be required for review if the Department of Labor conducts an inquiry. These steps are essential to demonstrate that hiring a foreign worker will not negatively impact the employment opportunities of U.S. workers.
5. What is the “Prevailing Wage,” and How is it Determined?
The prevailing wage is the average paid to similarly employed workers in a specific occupation and geographic area. This wage is determined by the Department of Labor (DOL) to ensure that hiring a foreign worker does not adversely affect the wages of U.S. workers in the same field. Employers must request a prevailing wage determination from the DOL, which involves analyzing data from various sources, including industry standards, collective bargaining agreements, and wage surveys. This process ensures that the wage offered to the foreign worker is comparable to what is typically paid to U.S. workers in similar roles within the same region. By setting this standard, the DOL helps maintain fair labor market conditions and protects domestic workers from potential wage suppression.
6. What Does the Recruitment Process Involve During PERM Labor Certification?
The recruitment process during PERM labor certification consists of a series of steps that an employer must take to advertise the job and demonstrate that no willing, qualified U.S. workers are available to fill the position. This process is designed to ensure that U.S. workers are given priority for job opportunities before they are offered to foreign workers. Employers must adhere to specific regulatory requirements, which include placing a job order with the State Workforce Agency (SWA) serving the area of intended employment and running two print advertisements in a Sunday edition of a widely circulated newspaper. For professional positions, additional recruitment steps are required, such as posting the job on the employer’s website, using job search websites, conducting on-campus recruitment, or participating in job fairs. These efforts must be documented meticulously, including evidence of all advertising, recruitment activities, and responses received. This documentation is crucial in proving to the Department of Labor that the employer made a genuine effort to find qualified U.S. workers before proceeding with the PERM labor certification for a foreign worker.
7. What are the Potential Reasons for PERM Labor Certification Denial?
PERM labor certification may be denied for several reasons, each reflecting the stringent requirements of the Department of Labor (DOL) to protect U.S. workers. One common reason for denial is application errors or inaccuracies, such as incorrect information about the job or the foreign worker’s qualifications. Additionally, failure to meet recruitment requirements can lead to denial. This includes not adhering to the mandated advertising steps, improperly documenting recruitment efforts, or not genuinely testing the labor market. Another significant reason is if the DOL determines that qualified U.S. workers are available and willing to take the job. If U.S. workers who meet the job’s requirements are found during recruitment, the certification will be denied to prioritize their employment. Therefore, ensuring accuracy and thoroughness in both the application and the recruitment process is crucial for a successful PERM labor certification.
8. What Happens After the PERM Labor Certification is Approved?
Once the PERM labor certification is approved, the employer can proceed to the next step by filing an Immigrant Petition for an Alien Worker, Form I-140, with U.S. Citizenship and Immigration Services (USCIS). This petition demonstrates that the foreign worker meets the qualifications for the job and that the employer has complied with all regulatory requirements. Upon approval of the I-140 petition and a visa number becomes available, the foreign worker can apply for a green card (lawful permanent residence). This step involves either filing for adjustment of status if the worker is already in the United States or applying for an immigrant visa through consular processing if they are abroad. Successfully obtaining a green card grants foreign workers the right to live and work permanently in the United States, bringing them closer to achieving long-term stability and residency.
9. Can a PERM Labor Certification be Transferred to a New Employer?
Generally, a PERM labor certification is specific to the job and the employer for which it was approved and cannot be transferred to a new employer. This specificity means the certification is tied to the original job position, location, and employer’s details outlined in the application. The new employer cannot use the existing PERM certification if a foreign worker changes jobs or employers. Instead, the new employer must initiate the PERM labor certification process. This involves obtaining a new prevailing wage determination, conducting a fresh round of recruitment efforts to test the labor market, and filing a new ETA Form 9089 with the Department of Labor. The new certification process ensures that the job market is appropriately tested for U.S. workers who may qualify for the position under the new employer’s circumstances.
10. What is the Process of Appealing a Denied PERM Labor Certification?
If a PERM labor certification is denied, the employer can seek reconsideration or file an appeal with the Board of Alien Labor Certification Appeals (BALCA). The first step typically involves requesting a review or reconsideration from the Department of Labor (DOL), where the employer can present additional evidence or clarify any issues that may have led to the denial. If the reconsideration request is also denied or if the employer chooses to appeal directly, they can then submit an appeal to BALCA. The appeal must be grounded in a substantial error in law or fact, meaning the employer needs to demonstrate that the denial was based on incorrect legal interpretations or factual mistakes. The appeal process involves submitting a detailed brief explaining the basis of the appeal, which may include a hearing where the employer can present their case. Successfully appealing a denial requires a thorough understanding of the PERM process and meticulous attention to detail in addressing the reasons for the initial denial.
Consultation
The permanent labor certification process requires attention to detail and an in-depth understanding of the requirements of the US Department of Labor and USCIS. The lawyers at Richards and Jurusik have decades of experience with the PERM process. Please schedule a consultation with one of our experienced PERM lawyers today.
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