So, you have successfully aced your interview with a US-based business – congratulations! Before you pack your things, get excited about working in the US, and plan your trips to many landmarks across the US, let us first tell you about the next steps in the procedure for your migration and citizenship in the US, specifically if you are coming through an EB-3 employment-based green card.
EB-3, or Employment Third Preference E-3, is an immigration program that allows eligible people to legally work and live in the US by procuring an employment-based green card. This program is also one of the fastest methods to obtain a US Green Card and become a lawful permanent resident of the United States.
Several steps are involved in obtaining an EB-3 employment-based green card, but none is more critical for the successful outcome than the Prevailing Wage Determination (PERM) process. In this detailed narrative, we will discuss several aspects of the PERM procedure in the EB-3 immigration program, which will help you prepare your case in the best possible way.
What is Prevailing Wage Determination?
The PERM (Prevailing Wage Determination) is a permanent labor certification program that protects the job rights and working conditions of a native US national. Whenever an employer operating in and a permanent US citizen decides to hire someone for a job from outside of the United States, they are first required to initiate a detailed recruiting process within the US to see if there is already a qualified US citizen available to do the work.
US employers/companies must do an intensive recruitment process that includes a variety of marketing sources and a time limit of at least a 30-day job posting. The business/employer must wait another 30 days for eligible candidates to respond to the job requirement.
Suppose, during this period, and the employer doesn’t find any eligible candidate within the United States. In that case, they can then file for an EB-3 employment-based visa and green card for the selected foreign individual and request the National Prevailing Wage Center (NPWC) for prevailing wage determination data, an official service with the US Department of Labor.
In some cases, employers can also get wage data from government-recognized sources such as the Foreign Labor Certification Data Center (FLCDC) website. However, a private wage survey is also eligible in some instances, but it is recommended to consult an immigration attorney to get a legally-accepted report before filing. Immigration attorneys at Herman Legal Group can provide crucial help in preparing a conducive petition for you.
The Department of Labor will then determine the wage paid for that specific skill in the region where the business is located. The PERM application processing may take around 60 to 90 days, while the period for wage determination is between a few weeks to over two months.
For the application to process further, the employer must agree to pay that wage to the incoming foreign worker and need to provide surety of being financially capable of delivering that wage continually. The employer had to show evidence of bank statements and salary/pay slips of a similar workforce in their organization.
There is more information available on the prevailing wage process and methodologies at the US Department of Labor website here.
What Are the Employer Requirements for Getting a PERM Labor Certificate?
The PERM stands for Program Electronic Review Management System Labor Certification. It is an e-processing system – made by the US Department of Labor – to facilitate labor certification filing for an employment-based green card. More information on the enaction and a detailed description of this system can be found on the US Department of Labor Employment and Training Administration website.
The requirements for an employer to get a PERM labor certification are varied. But the foremost of them is to ensure the USCIS that the admission of a foreign worker in the US will not, and must not, adversely affect the wages, working conditions, and job opportunities for the native US workforce.
To meet this end, it is the employer’s responsibility to file a PERM prevailing wage determination request to the Department of Labor, which will then be used to certify that the above stringent requirement is precisely met by the US Citizenship and Immigration Services (USCIS). The USCIS will then facilitate an employment-based visa and green card for the foreign worker.
Apart from meeting the unavoidable requirement mentioned above, the employer must also have to follow these requirements to get a PERM labor certificate:
- The company/employer must not tailor job requirements based on the foreigner worker’s skill set.
- The company/employer must be financially capable to pay the prevailing wage or greater.
- The company/employer must successfully demonstrate that there are no qualified workers available for the job within the US.
- The company/employer must offer a full-time job.
- The company/employer must demonstrate that the position/wage of the foreign worker will not adversely affect the working conditions/wages of the native US workers.
Once these requirements are successfully met, the company/employer will become eligible to file an employment-based immigration petition to the USCIS on behalf of the foreign skill-worker.
What is the ‘Prevailing Wage Determination’ Validity Timeframe?
According to the official document on the DOL website, the validity period for a PERM prevailing wage determination is from 90 days to a year.
The determination report should be submitted as soon as received by the employer, within the validity period, along with the PERM recruitment file and Labor Certification to the USCIS.
One of our advanced guides on perm processing, timings, and costs can help you get a more in-depth look at the subject of validity and processing time for perm wage determination procedure over here.
What Are the Steps in the ‘PERM Labor Certificate’ Process?
The PERM process is a long and multi-faceted one. We will briefly lay out the entire procedure through which a US-based employer can successfully sponsor a foreign employee for employment-based immigration and green card. Here are the steps:
Filing the “prevailing wage determination request” to the US Department of Labor via Form ETA 9141.
The first step in obtaining a ‘PERM Labor Certificate’ is to file a “Prevailing Wage Determination” (PWD) request to the US Department of Labor on their official ‘FLAG System’ at the DOL website (https://flag.DOL.gov/). This step is done by the US-based company/employer on behalf of the foreign worker they are seeking to hire.
The US-based company/employer needs to use Form ETA 9141 to fill out this request. This request, and all the processing for almost all visa programs, are now processed electronically on DOL’s FLAG website since the June of 2019.
Form ETA 9141 highlights such information to the DOL as:
- Minimum requirements for the job
- Job duties to be performed
- Worksite location
- Employer’s information
Based on this information, DOL studies and issues a prevailing wage determination (PWD) to the employer. This PWD report will include information about the minimum wage for the specific job in that specific location/region of the work site. The employer must have to agree to pay the prevailing or greater wage for the job described in that specific location/region.
However, PWDs may vary according to the geographic location of a company/employer in a specific region of the United States. For those who prefer to download and fill out the form ETA 9141 at their convenience, they can download the form from the official DOL library here. You can find more helpful material on the documentation of PERM in the official form section at the DOL website here.
Initiating an Intensive Local Recruitment Campaign
After filing the prevailing wage determination request with DOL, the next step is to initiate an intensive recruitment procedure for the vacant post. This step is crucial for obtaining the PERM certificate because it will ensure the DOL that no viable US worker is available to fill the vacant position. Thus, the DOL will then be liable to issue a PERM labor certificate to the employer.
Here is how the PERM job advertisement process works:
1. The company/employer is required to post the job ad with their State Workforce Agency (SWA). The job shall be placed on the actual State Workforce Agency portal where the employer/company is looking to fill the position.
2. The employer must have to post a job order in “good faith” recruitment, which means that the job order must be prepared in such a way as to attract any available US worker.
3. Along with posting the job advertisement with the State Workforce Agency, the company/employer must also place the job order in a major newspaper in the intended employment area/region. The job advertisement should be placed in two different Sunday editions of the paper.
4. The employer/company must also post the job offer internally. This includes posting the job offer on the physical premise of the worksite location, town hall, or union hall; specifically for those recruitments that are in rural or remote areas of the United States.
5. On top of these job posting requirements, the employer/company must utilize 3 additional methods for placing the job order. The following is the list of additional recruitment methods out of which 3 ways must have to be used:
- Using a local job fair/seminar event
- Posting on popular job search engines (e. g. Indeed.com)
- Placing the job advertisement in a trade or talent recruiting firm
- Placing the job offer on the local College/University campus
- Running the job advertisement on local radio or television channel
6. All the job placements must be run actively for 30 days. After this period ends, the employer/company must wait another 30 days for an eligible US worker to respond to their job offer.
And that is how the PERM job advertisement step is done. However, since this step is utterly crucial for the success of your PERM initiative, and it involves a diversity of methods, it is highly recommended to consult an experienced immigration law firm to get you through. This will greatly help you to prepare a strong case for PERM certification.
Filing PERM application using Form ETA 9089 to the US Department of Labor
Once the combined two months period has been passed – 30 days with live job ad and 30 days response period – and the employer/company did not find any viable US worker for the job, the employer/company can now file the PERM application using Form ETA 9089. However, if the job position falls in the category of professional occupation, you can choose to have one of three recruitment mediums!
The form ETA 9089 is an application form to get permission to employ a non-US worker. This form is filled out by the sponsoring employee/company to the US Department of Labor (DOL) on behalf of the foreign worker they are going to hire. This step comes after the employer/company has obtained prevailing wage determination data and has ended the job advertisement phase.
The Form ETA 9089 highlights this information to the DOL:
- Foreign worker’s full legal name
- General employer bio-data (e. g. business name, Federal Employer Identification number, current employees, etc.)
- Employer’s point of contact information
- Agent or immigration attorney information
- Prevailing wage information
- Job opportunity information
The employer/company must submit the prevailing wage determination data along with the form ETA 9089. The employer/company can submit Form ETA 9089 either by mail or electronically at the DOL’s FLAG system online. However, the latter method is preferable by the DOL. The form can be downloaded from the official DOL website here, as well as being submitted online at the DOL’s website over here.
After the form and prevailing wage information is submitted successfully, it would take around 2 – 3 weeks before the application is either approved or declined. If the application is declined, the employer/company will be guided about the reason by the DOL.
If it is approved, the foreign worker will now become eligible to be hired as an employee by the US-based employer/company, and their employment will not adversely affect the working condition of the native US employees.
The approval of this step leads to the last step of the PERM process, which is to file the Form I-140 (Immigrant Petition for Alien Worker) to the USCIS (US Citizenship and Immigration Services), along with the PERM Labor Certificate received from the Department of Labor (DOL).
Filing Form I-140 (Immigrant Petition for Alien Worker) to the USCIS (US Citizenship and Immigration Services) with PERM Labor Certificate from the Department of Labor (DOL)
After all the above steps are successfully passed, the final stage in the EB-3 Employment-Based Green Card procedure is the filing of Form I-140 to the USCIS, along with the PERM Labor Certificate obtained from the US Department of Labor.
This form is also filed by the US employer/company on behalf of the foreign worker they are hiring. The US employer/company is the petitioner while the foreign worker is the beneficiary. This form will enable the USCIS to issue a work visa to the beneficiary.
The pre-requisites for the submission of Form I-140 are as follows:
Proof of financial stability to provide the minimum prevailing wage (or greater) determined by the DOL in the prevailing wage determinations report. The employer/company may need to provide annual financial reports, audited financial statements, federal tax returns, and employees’ salary/pay slips for that specific job.
- PERM Labor Certificate provided by the US Department of Labor.
- A filing fee of $700 at the time of submission, either online or by check/money order at the regional USCIS Service Center.
- A completely and accurately filled Form I-140. It is recommended to take help from a reliable immigration lawyer for accurate submission of the form.
Done! You have submitted your petition to the USCIS successfully. After receiving your documents, the USCIS will issue you a ‘Receipt Notice’ and assign a case number to your file. Now, you must wait for the approval of your case by the USCIS.
Although, it depends on the backlog of the USCIS in processing a case, as well as the case’s details; a general timeframe of either acceptance/declination is no more than 3 months.
Congratulations! As a US-based employer/company, you have done your part in sponsoring the foreign worker you wish to migrate to the US Now, once your case is approved, the remaining part will be done by the foreign worker through consular processing at a foreign US Consulate.
What are the Costs of the Entire PERM Procedure?
There is only one single filing fee (per applicant) of $700 when the employer/company submits Form I-140 to the USCIS. However, there are other PERM-related costs as well. If the employer/company hires a professional immigration attorney/firm to increase the chances of a successful process, they should consider a budget of somewhere around $2000 to $6000.
Form 9089 is filed completely free of any charge. However, the costs of job advertisements will fall on the employer/company. For 2 print advertisements in a major circular newspaper, especially the Sunday editions, a general cost average should be around $500 per ad. This is just an estimate because the prices may vary according to the paper and region where it is read.
Apart from the estimates above, any additional incidental costs or overheads may add up to the total expenditures. The role of an expert immigration law firm over here plays an important part as they can catch any loopholes in the entire procedure before the authorities do.
What are Some of the Common Errors to Avoid in the PERM Labor Certification Process?
Employers/companies sometimes do very simple mistakes in the PERM process which hinders the entire procedure, and often puts their cases to auditing by the DOL. However, audits can be caused by some factors like if you’ve hired someone from an employee referral program. That is why it is generally accepted that the major portion of a successful application lies on the US employer/company rather than the foreign worker.
To ensure successful PERM procedures, here are some of the common errors which US employers/companies must avoid in the process:
1. Always double-check the ETA Form 9089 before filing. Even minor typographical errors, such as misspellings, can get your application declined – let alone incorrect information.
2. A failure to respond to a simple questionnaire from the DOL can get your application denied. What happens is that when an employer/company submits form ETA 9089, DOL sends a quick and small questionnaire to the email address mentioned in the form. This is to check if the submission is done by a human and not by a bot; spammer, hacker, bot, etc. Not replying to this questionnaire within seven days can give a red flag to the DOL.
3. Minimum requirements (qualification/work/experience/etc.) which the foreign worker’s academic and professional bio-data could not verify, or at the least does not stand in equivalence to the US standards, may get rejected. Being exact and verifiable in all aspects of the PERM process is the only way to approval.
4. Practical experience matters! When processing the PERM job application, it is essential to highlight a quantifiable working experience of the foreign worker rather than the subjective. For example, if your selected foreign worker has tremendous knowledge of their skills, and that knowledge will bring lots of help to your work/product, it is not sufficient to reject a US native employee. Instead, if your selected foreign worker has practical accomplishments to show along with the advanced knowledge, that will pique the interest of the DOL.
5. Placing advertisements on the wrong dates is another factor hindering the PERM process. If the employer/company has placed the first advertisement on the Sunday edition, the second one should be placed on the following Sunday. Putting both advertisements one after the other on subsequent days can decline your labor certification application.
While there are some other loopholes, the ones mentioned above are the most noticeable. It is always best in favor of the petitioner to double-check everything and avoid common mistakes that can ruin all the time, effort, and money. That is why getting help from an immigration lawyer by your side is recommended from the start till the end.
Let Herman Legal Group Be Your Assistant Throughout the Complex Legal Procedure of the PERM Permanent Employment Certification
The Herman Legal Group, founded in 1995, can help. The law firm is AV-Rated and has been awarded the “Best Law Firm” designation by US News & World Report. The firm serves clients nationwide and worldwide on all types of US immigration schemes/programs. Your perfectly optimized content goes here!