Permanent Labor Certification is a necessity for most employment-based visa programs in the United States. Obtaining permanent labor certification differs in terms of requirements based on the program. The employer is responsible for filing applications.
However, the employee will profit from knowing the program that is being used on his or her behalf. In general, the DOL seeks to guarantee that foreign employees’ entry to the United States has no negative impact on job prospects, pay, or working conditions for similarly employed American workers. After the DOL has granted a permanent labor certification application, the employer must apply to USCIS for immigration permission.
What is Permanent labor certification?
The Department of Labor (DOL) issues a permanent labor certification that authorizes an employer to appoint a foreign employee to work in the United States on a permanent basis. In most cases, an approved labor certification application from the DOL’s Employment and Training Administration is required before a U.S. business may file an immigration petition U.S. Citizenship and Immigration Services Department.
The Department of Labor must certify to the USCIS that there are insufficient American workers who are able, competent, qualified, and available for the job in the area of intended employment and that the foreign worker’s employment will not have an adverse effect on the wages and working conditions of similarly employed Americans.
Which Visas Require Permanent labor certification?
Most employment-based immigrant visa programs have a foremost requirement for a permanent labor certification. EB-2 and EB-3 visas ask for the employer to get a PERM labor certification prior to filing for a green card. EB-1 visa programs, however, don’t have any such requirement. The PERM labor certification for an EB-2 visa can be waived on the basis of a National Interest Waiver (NIW).
Permanent Labor Certification Requirements
To begin with the PERM process for permanent employment certification, the following requirements need to be filled:
- A permanent job offer from a corporation or employer in the United States is required.
- The salary provided must be equal to or higher than the current DOL rate. The Department of Labor will assess this in the context of the specific work.
- Professional employment requires a degree higher than a bachelor’s degree.
- For capable individuals, the local employment market has been analyzed. This is required to demonstrate that current U.S. employees are unable to satisfy the position’s requirements, meaning that no qualified U.S. citizens are available for the position. If requested, extra documents relevant to recruitment operations must be made accessible.
- Employers are required to produce and maintain an audit file, as well as further verification of recruiting attempts.
- Evidence should be presented that there are no available U.S. workers for the job opportunity being given to the foreign workers. Moreover, it should be proved that employing a foreign worker won’t adversely affect the existing U.S. employees.
Given below is a list of required supporting documentation for the permanent labor certification program:
- Local Labor Market Analysis
- Prevailing Wage Request
- Job Orders
- Newspapers Ad
- Audit File of U.S. employer
- Immigrant petition
- Complete ETA form 9089
PERM Labor Certification Process
The process of obtaining PERM labor certification consists of the following steps:
Step 1: Formulating Job Duties
A job position is created, and a job description is written by the employer. Work titles, responsibilities, needed education and experience, supervision, specified location(s), and other relevant job-specific data should all be included in the job description.
Based on DOL standards and practical business practices, the employer must describe the employment criteria. When accepting the offer, the employee should be able to demonstrate that he meets the employment criteria. Previous work experience and education must be adequately documented. Changes in employment responsibilities, minimum criteria, or location in the future may necessitate restarting the procedure.
The length of this stage is determined by how soon we can get the relevant information from all parties involved. This process might take 2-4 months in total.
Step 2: Prevailing Wage Determination
The employer meets the requirement of prevailing wage determination by seeking the position’s prevailing wage from the DOL. The prevailing wage is the minimal rate that an employer can and will pay an employee, as established by the Department of Labor based on the job description.
Following that, the employer must show that they are able and willing to pay the foreign worker at least the prevailing wage approved by DOL age for that position. To demonstrate a continuous capacity to pay the foreign national employee’s salary, the sponsoring firm may need to present supporting evidence such as a federal income tax return, yearly report, or audited financial statement.
Step 3: Recruitment process
A sponsoring employer must advertise the job after getting the prevailing wage finding to rule out the existence of a U.S. worker for the position. Sponsoring firms are required by DOL requirements to ‘test the U.S. labor market,’ demonstrating that there are no competent and willing U.S. citizens or permanent residents available to fill the positions for which the foreign workers are being employed.
The sponsoring employer must have used a legitimate recruiting method to hire foreign workers. When a competent and willing U.S. employee applies for the job, the sponsoring company must stop the process and wait six months before re-testing the labor market.
Step 4: Form ETA 9089
The last stage in the PERM procedure is to submit the PERM application once the sponsoring employer has met these requirements. Form ETA 9089 is filed. After that, cases will be assessed by expert analysts who will be able to flag a questionable case for PERM audit. When a case is reported for PERM audit, it is checked for discrepancies throughout the recruiting process.
Permanent labor certification issued by the Department of Labor allows the applicant to apply for a green card, and the priority date is shortly assigned.
Within 180 days of PERM approval, the petitioner must file I-140 together with the submission of permanent labor certification (if applicable). Otherwise, once the certification expires, they will have to begin the DOL filing procedure all over again. A Form I-140 will be refused unless USCIS specifies otherwise.
USCIS will examine whether the non-U.S. citizen was suitably qualified for the employment when the PERM application was initially submitted while examining the petitioner’s I-140. The qualifications will differ based on the type of visa the green card applicant is seeking. The EB-2 visa is one of the most prevalent.
Time Taken to obtain a Permanent labor certification
Many factors influence the PERM processing time. The time it takes to approve each stage determines the total processing time for permanent labor certification. PWD step takes around 182 days. The recruitment process takes 30-60 days, and finally, after filing ETA Form 9089, three to four months are required.
The average processing time is of six to twelve months, and it alters with respect to the priority date assigned.
Petitioners have 180 days from the day the DOL approves the permanent labor certification application to submit the permanent labor certification in support of a USCIS petition.
If the labor certification has expired or the petition is filed without the authorized permanent labor certification, USCIS will reject the petition. USCIS dismisses a petition which was approved mistakenly without a proper permanent labor certification.
Labor certification Costs and Processing Fee
While Form 9089 has no filing fee, there are a variety of PERM-related fees. Employers may wish to engage an attorney to prepare all of the documentation and give guidance during the process, for example. Lawyer expenses vary, but employers should budget around $2000 and $6000 at the very least.
The employer will also be responsible for all recruitment costs. This means they’ll have to pay for two different print ads, each of which might cost up to $500. This cost varies based on a variety of criteria, including the newspaper’s readership, the size and color of the advertising, and the news outlet’s location.
Adding to these PERM-related expenses, the employer will be responsible for all USCIS filing fees. The charge for filing Form I-140, which is filed on behalf of a green card recipient by the employer, is $700.
These prices do not include any additional overhead or other miscellaneous fees that may be incurred throughout the recruiting process.
Why Choose Herman Legal Group?
Going through the immigration process alone is never a good idea. In any legal case, having a professional on your side is critical. Attorneys at Herman Legal Group are experienced professionals who have spent years aiding businesses and foreign-born employees in working and living in the U.S. Herman Legal Group is an immigration law firm established in the United States that strives to make all parts of the immigration process as simple as possible for you.
To make an appointment with one of Herman Legal Group’s experienced immigration lawyers, call 1-800-808-4013 or 1-216-696-6170, or book online. Consultation can be done through WhatsApp, Zoom meetings, Skype, and even in person.