Labor Certification, administered by the U.S. Department of Labor, is normally the first step for a foreign individual to obtain permanent resident status - a green card – through an employment-based immigrant visa petition. A U.S. employer applies on behalf of the foreign worker and must show that this job offer will not displace an available U.S. worker, nor will it adversely affect the wages or working conditions of similarly employed U.S. workers. Labor certification applications are a pre-requisite for most employment-based petitions, with the exception of the EB-1 category and EB-2 National Interest Waiver petitions. In addition, certain shortage occupations – nurses and physical therapists - have been deemed "pre-certified" and do not require labor certification.
On March 28, 2005, the U.S. Department of Labor instituted the PERM process for labor certification applications.
The PERM process was intended to be an attestation of the employer's recruitment efforts similar to the LCA (Labor Condition Application) used by H-1B employers, filed electronically, with the expectation of processing within 45 - 60 days. However, the processing time is in actuality a great deal longer. The PERM process includes the following steps:
1. The employer must register for PERM on the DOL website. The employer must also register its attorney so that the attorney can access the application.
2. The employer must obtain a prevailing wage determination for the position from the DOL. The employer must pay 100% of the prevailing wage for the position offered.
3. The employer must place a 30 day job order with the local state SWA office. The PERM labor certification may not be submitted until 30 days after this job order has run.
4. The employer must place 2 Sunday newspaper advertisements for the position. If the job offer is for a professional occupation, the employer must conduct 3 other types of recruitment (DOL lists 10 possible types of recruitment methods).
5. The employer must post a notice of the position at its worksite for 10 working days.
6. The employer must submit the PERM application within 180 days of the first ad and at least 30 days after the last ad.
7. The employer must keep track of all applicants for the position and provide lawful job related reasons for not hiring those considered unqualified for the position.
8. The DOL may audit this PERM application and request that the employer submit to DOL all documentation supporting its recruitment for the position.
Although the PERM process is intended to simplify and shorten the labor certification process, it has proven to be at times a long and tedious process.
|Special Handling of Labor Certification Applications for College and University Teachers:
Labor Certification Applications filed by colleges or universities for teachers are done under "special handling" procedures. The employer must demonstrate that it has conducted a competitive recruitment selection process (involving at least one advertisement in a national professional journal) within 18 months of filing the application, and that the foreign individual is more qualified than any of the U.S. workers who applied for the job. Special handling has the advantage of allowing college or university employers to hire the most qualified individual rather than a minimally qualified U.S. worker, as in the normal type of labor certification processing. Specialized handling is also filed through the PERM process.
To request a consultation regarding an application for Labor Certification, please contact our office here.