Labor Certification

Labor Certification, also known as the PERM (Program Electronic Review Management) process, is a prerequisite for certain foreign nationals seeking employment-based permanent residency in the United States. The purpose of Labor Certification is to ensure that U.S. workers are not adversely affected by the employment of foreign nationals and that the foreign nationals are not being exploited by their employers.
The U.S. Department of Labor (DOL) is responsible for the Labor Certification process, which is required for most employment-based green card applications in the EB-2 and EB-3 categories. The process involves the employer demonstrating that there are no qualified, willing, and able U.S. workers available for the position being offered to the foreign national, and that employing the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Here are the key steps involved in the Labor Certification process:

  1. Prevailing Wage Determination: Before starting the Labor Certification process, the employer must obtain a prevailing wage determination from the DOL. This determination sets the minimum wage that the employer must pay the foreign national for the offered position based on the job duties, requirements, and location.
  2. Recruitment Efforts: The employer must conduct a good faith recruitment campaign to attempt to find qualified U.S. workers for the position. This typically involves advertising the job opening in various channels, such as newspapers, job websites, and professional organizations. The employer must document their recruitment efforts and the reasons for not hiring any U.S. workers who applied for the position.
  3. Filing the PERM Application: After completing the recruitment process, the employer must file a PERM application (Form ETA-9089) with the DOL, detailing the job duties, requirements, offered wage, and recruitment efforts. The DOL will review the application and may request additional information or documentation before making a decision.
  4. Approval or Denial of Labor Certification: If the DOL approves the Labor Certification, the employer can proceed with the employment-based green card process by filing an immigrant visa petition (Form I-140) with the United States Citizenship and Immigration Services (USCIS) on behalf of the foreign national. If the Labor Certification is denied, the employer may request reconsideration or appeal the decision, depending on the reasons for the denial.
  5. Filing the Green Card Application: Once the I-140 petition is approved, the foreign national may file a green card application (Form I-485, Application to Register Permanent Residence or Adjust Status) if they are in the United States or apply for an immigrant visa at a U.S. consulate abroad, depending on their eligibility and the availability of visa numbers.

The Labor Certification process is a complex and time-consuming procedure that requires employers to carefully document their recruitment efforts and demonstrate their compliance with U.S. labor and immigration laws. Working with an experienced immigration attorney can help employers navigate the Labor Certification process and increase the chances of a successful outcome.

AceProLaw.com   |   Disclaimer