Labor Certification through PERM
Given below is an outline of the procedure for an alien seeking to apply for an immigrant visa (green card) to perform skilled or unskilled labor in the United States.
To receive an immigrant visa to perform skilled or unskilled labor in the United States, the alien first has to obtain a formal certification from the Department of Labor that there were insufficient United States workers willing and qualified to perform the labor in question and that the employer of the alien would not adversely affect the wages and working conditions of United States workers similarly employed. This process is known as "LABOR CERTIFICATION."
To obtain a labor certification, the alien's prospective employer has to file an Application for Alien Employment Certification known as ETA 9089, with the United States Department of Labor. This application had to be completed and signed under penalty of perjury by both the prospective employer and the alien. The ETA 9089 application represents that the employer has a specific job to fill, and it describes the nature, location, terms and requirements of the job: The application also lists the alien's name, address, biographic information, and immigration status, and describes his/her experience and qualifications for the job that the employer is offering. Further the alien must represent that he or she is willing and qualified to accept the job.
Before the ETA 9089 is filed, the employer is required to complete the following steps
- Obtain the prevailing wage rate from the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk center in Washington D.C.
- Open a 30 day job order with the State Workforce Agency.
- Place two news paper advertisements on two different Sundays.
- Post a notice of job availability in the place of business for 10 consecutive business days.
NOTE that forProfessional positions (that require a bachelor's or master's degree), the employer must choose three ADDITIONAL forms of recruitment from the list below (*recommended)
- Employer Web Site*
- Job Search Web Site
- Employee Referral Program*
- Local or Ethnic newspaper*
- On-Campus Recruiting
- Trade or Professional Organization*
- Private Employment Firm
- Campus Placement Office*
The Department of Labor (DOL) requires that the employer identifies any qualified U.S. worker if one is available, although it will not force the employer to hire such a worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the Alien or that recruitment has been undertaken strictly for labor certification purposes.
Nor may the Alien or undersigned counsel participate in interviewing or evaluating U.S. job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.
One requirement of the DOL is particularly worth explaining: that any U.S. worker who meets the actual minimum requirements for the job and applies for the job must be considered as potentially qualified. EVERY potentially qualified applicant who meets the minimum requirements must, within 15 days of receipt of their Resume, be
contacted by the employer
via certified mail, return receipt requested, to schedule an interview. The employer is required to keep a written log of all contacts with the applicants (time, date & means).
Only the employer can disqualify applicants who do not meet the minimum job requirements listed in the advertisement. Some reasons for disqualification include, but are not limited to the following situations where the Alien Applicant:
- Does not have educational background required for the position;
- Does not have the required work experience required for the position;
- Cannot or will not furnish required verifiable references, copies of degrees or resumes;
- Is not legally authorized to work in the U.S.;
- Is not willing to work the hours required or is not willing to work for the offered wage;
- Is unwilling or unable to comply with any special requirements as advertised (ie. criminal background or drug test);
- The candidate informs the employer that he or she is no longer interested in the job position; OR
- The candidate does not respond to the employer's request (via certified mail) to contact the employer to schedule an interview (no longer interested)
The principal distinction between the labor certification process and the normal hiring process of most employers is that during the labor certification process the employer is trying to identify workers who only meet the actual minimum requirement to fulfill the position; during the normal hiring process most employer's seek the
most qualified candidate for the job, not just one who meets the job's minimum requirements. Although the recruitment procedure required of employers by the DOL after the application is filed has many similarities to the recruitment procedures used by employers, it is this distinction that makes the two processes very different, which is why aspects of the labor certification process seem peculiar to many employers.
Should the employer determine that no U.S. worker is qualified for the position, the employer summarizes its recruitment efforts and the application is completed and filed electronically with the US Department of Labor. The DOL reviews the application for completeness, ensures that the employer is offering the prevailing wage for the job listed in the application, and may review any recruiting and advertising that the employer must do as part of the certification process.
Finally, the employer must, for a period of five years, maintain a public file, (available for public inspection) which summarizes the results of the employer's recruitment efforts, including all advertisements placed. If the Department of Labor approves the application and issues an "Approved Labor Certification," the employer files an Immigrant Petition for Alien Worker, (U.S. Citizenship and Immigration Form I-140), on the Alien's behalf. If the Form I-140 is approved, the Alien is eligible to file for permanent resident status (Form I-485) and for their Employment Authorization Document.
If you need assistance in connection with your PERM Labor Certification Application, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.