Labor certification is required in the employment-based immigrant visa application process as a means of ensuring that equally-qualified U.S. workers are not displaced by immigrant workers. Labor certification must be obtained by the petitioning employer, not the prospective employee. Obtaining certification is the first step, and must be completed before the I-129 petition is submitted.
PERM labor certification is the designation given to labor certification for permanent employees–those seeking immigrant visas. The certification is the Department of Labor’s (DOL’s) representation to the U.S. Customs and Immigration Services (USCIS) that:
- there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment, and
- that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers
Certain types of temporary employment-based visas also require labor certification, but the process is different for temporary certification.
For most occupations, the employer must conduct recruitment as specified by federal regulations and prepare a recruitment report regarding the legitimate, employment-based reasons that U.S. applicants were rejected. Typically, this summary is all that is required, but the Certifying Officer may request that the employer provide the resumes of rejected U.S. applicants.
The PERM Labor Certification Process
The process begins with a request for prevailing wage data from the National Prevailing Wage Center (NPWC). Once that data is received, the employer may proceed with completion of an Application for Permanent Employment Certification (ETA Form 9089). In the application, the employer must provide the following prevailing wage information:
- The prevailing wage
- The prevailing wage tracking number
- The SOC (O*NET /OES) code
- The occupation title
- The skill level
- The wage source
- The determination date and expiration date
The employer will also be required to submit information about the job, including:
- Job responsibilities
- Required education and training
- Required experience
It is important to note that these qualifications may not reflect the employer’s dream employee for that position. The DOL is looking for actual minimum requirements, meaning that the criteria listed must reflect the training, experience, education and other factors necessary to perform the job in a competent manner.
At the same time, the employer will outline the visa applicant’s qualifications for the job. Supporting documentation is not filed with the application, but the employer should be prepared to provide such documentation upon request.
Both the employer and the foreign worker are required to sign this application under penalty of perjury. DOL allows for paper-based or electronic application, but electronic applications are preferred and may be processed more quickly.
The PERM Timeline
Obtaining Permanent Labor Certification can be a time-consuming process.
First, obtaining the required prevailing wage data may take several weeks. Simultaneously or after receiving the prevailing wage information, the employer must make recruitment efforts according to minimum standards. Fulfilling these standards typically takes a minimum of 60 days. The processing of the application itself generally takes about six months, assuming that the application was filed electronically. Paper-based applications may take longer.
Once the labor certification is received, it is valid for a period of 180 days. If the certification is not submitted to USCIS within that time period, it will expire and a new certification will be required.
Most PERM applications do not require supporting documentation, but in some cases an application will be selected for audit. In an audit case, the employer will receive an audit letter and will have 30 days to respond. Then, the DOL may take several months to complete processing. Thus, the application process where an audit is involved may take more than one year to complete.
Managing the PERM Requirements
The PERM labor certification application process must be successfully completed before the employer can even submit the visa petition to USCIS. With the PERM process requiring several months to more than a year and the additional time associated with the processing of the visa petition, most employers cannot afford to make mistakes that may delay the process.
Obtaining employment based permanent resident status is a three-step process. The first step towards getting a green card is the PERM labor certification. The PERM process contains many necessary criteria that must be met for approval. This process is involved and requires meticulous planning and organization. This article will concentrate on the steps involved in completing the PERM labor certification.
The PERM labor certification is filed on Form ETA 9089. Once filed, typical processing for a PERM application is approximately six (6) months. Employers are charged with completing several steps before the application can be filed with the Department of Labor (DOL), which will be the next focus.
Duties Offered for Position and Minimum Requirements
Starting a PERM case begins with establishing the duties are requirements of the position. Every position has government regulations which contain:
- Job description
- Job requirements or qualifications
Drawing from these regulations, it is the responsibility of the employer to define the required experience and education needed for the sought after position. These requirements fall under DOL’s “actual minimum requirements” more specifically, 20 CFR 656.17(i)(5)(ii). This regulation requires the employer to state the minimum education and experience requirements needed to perform the job in a satisfactory or “competent” manner.
Because the employer’s minimum requirements have now been established, a sponsored employee must show how he/she meets them. This is typically done through providing educational documents, letters from previous employers and foreign educational credentials.
Obtaining Prevailing Wage Determination
The second necessary action in filing a PERM application is acquiring a Prevailing Wage Determination (PWD) from DOL. The minimum wage level is determined by referencing the position’s description (step 1) and can take approximately 6 weeks. It is possible to process PWD before recruitment however; it is advisable to acquire PWD before recruitment.
Obtaining Prevailing Wage Determination Before Recruitment
A good reason for acquiring PWD before recruitment is the number of problems that can arise during PWD processing. For example, although a specific PWD is submitted originally it is possible that a different, even higher PWD is rendered by DOL. This could cause an entire case re-start from step 1.
Another common pitfall in the PWD stage of the PERM process is timing. Recruitment is only valid for a specific amount of time and the Perm Labor Certification MUST be filed during the validity of the PWD. Therefore, recruitment must be completed before the expiration date of the PWD. If recruitment is not completed before the expiration date, then the process has to start all over again (step 1).
How to do Recruitment for a PERM Labor Certification
Recruitment, like all other steps in the PERM process has strict guidelines to adhere to. Recruitment must be done using the following:
- Two newspaper ads – (with major circulation)
- Posting in State Labor Department’s Job Bank
- Three additional forms of recruitment – (for professional positions)
These advertisements should be done with care as there are regulations outlining both the types of advertisements to use and the content of the advertisements.
Similar to the previous steps of the PERM process, “timing” plays an important role in recruitment. Each of the advertisements has a specific period of time they must run for. If an advertisement is cut short (even without employer authorization); DOL could potentially deny the application. Keeping a timeline of all the advertisements and properly documenting them is a difficult task and should be entrusted to an experienced professional.
Responding to Recruitment Resumes
DOL requires that an employer promptly respond to any resumes gathered from recruitment. This attention is to ensure that DOL considers the recruitment process valid. There are numerous ways to respond including rejecting resumes and conducting interviews however, almost always choosing the correct response to a resume is a difficult decision. This article unfortunately cannot cover all of the potential hazards handling resumes can cause. It is truly recommended that an attorney be consulted for this due to how individualized each case is.
30 Day “Quiet Period”
Some refer to the period between finishing the majority of recruitment and the actual filing of the application a “quiet” or “hold” period due to the level of inactivity. After the 30-day job order and most of the recruitment is done, an individual must still wait an additional 30-days before filing. This window of time is actually implemented so that an employer can continue to receive possible resumes. In most cases, filing a PERM labor certification BEFORE the 30 day period will result in denial.
When to File FORM 9089
Assembling ETA 9089 is an involved procedure and ideally should be entrusted to an attorney. However requires the involvement of both the employer and employee who must sign under penalty of perjury. It is also essential that ETA 9089 is not finalized until AFTER recruitment.
Termination of a PERM Application
As understood by most applying for PERM, emergence of a willing, qualified and able US candidate will cause the PERM application to be terminated. This does not bar an employer from starting a new PERM application at a later date
Always Work With A Professional
The Perm Labor Certification process is both complicated and time consuming. Unfortunately, there are far more ways to make an error during this process than this article could cover. It is in the benefit of any employer or sponsored employee to consult with an experienced immigration attorney when pursuing PERM in hopes of avoiding errors due to timing, responding to resumes, interpretation of state and federal codes and compiling form ETA 9089.
Speak With The Immigration Law Attorneys At Pride Immigration
We offer our prospective clients consultations either at our office or via phone so that you can understand all of your options. Call Pride Immigration or contact us online to set up a consultation and discuss your case.