December 20

Navigating the PERM Labor Certification Process

The PERM application or labor certification process takes skill to successfully navigate. For an employer to fill a job with foreign talent permanently, they have to prove that no other U.S. workers have the minimum qualifications or are willing to take the position. Both the EB-2 and EB-3 visas/green cards require U.S. employers to go through the PERM process.

How the PERM Process Works

The DOL who issues a labor certification that “certifies” to the United States 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.”

(Source: Department Of Labor)

The EB-2 visa/green card is for employment-based immigrants with “exceptional” ability or advanced degree permanent residence (second preference).

This visa is available to two main types of applicants:

  1. Members of professions who hold an advanced degree (or equivalent); 
  2. Those who can otherwise prove “exceptional ability” (i.e., expertise that is significantly higher than the norm) in their particular field, whether it is the sciences, arts, medicine, business, or athletics.

The EB-3 visa/green card is a permanent residence green card for “skilled, professional, or other workers.” There are three routes to the qualification:

  1. Skilled Worker: The position demands at least two years of relevant employment experience or training. In addition, it requires a Labor Certification Process to demonstrate that no qualified workers are already available in the U.S. to fill the position.
  2. Professionals: The professional position in question requires a bachelor’s degree (or foreign equivalent).
  3. Unskilled / “Other” Workers: The third option covers jobs that require less than two years of training, (excluding temporary or seasonal employment).

Establishing the Prevailing Wage

Before a company can initiate the Labor Certification Process, they have to make sure they offer the requisite amount of money for the job or the prevailing wage. The company sends a request to the National Prevailing Wage Center to determine the prevailing wage, which can take six weeks to six months. The company can start the advertising process after establishing the prevailing wage. 

Permanent Labor Application Process

The first thing is for the company to determine the job requirements, not only the duties. The job requirements show if any Americans or green card holders are willing or able to take the job. Companies can do this by using Indeed.com or Monster.com to review industry standards.

Once the company determines the specific job requirements, they submit a Labor Certification Application that the DOL “certifies,” allowing the employer to hire a foreign worker to fill the job permanently.

Job Requirements and Supporting Evidence

There are a few different ways to determine the minimum requirements to qualify as essential. There needs to be substantiated proof that the potential employee has experience with a particular skill set and worked for said company.

  1. A letter from the company written by a supervisor or manager endorsing the applicant’s specific skills and the amount of time they have worked for the company.
  2. Contracts or pay slips as supporting evidence.

One of the things to remember is that people can learn skill sets concurrently. There can be four skills learned simultaneously in one or more jobs.

The new advertisement should be consistent with how the employer has previously advertised for the position. For instance, if the company has only required a bachelor’s degree without any experience, then it is unreasonable to begin advertising for a master’s degree or an additional two years of experience.

However, if the employer can show that the job involves a more sophisticated skill set or is a higher-level position, then it is not illogical to change the requirements.

Certifications

Certifications are another way to prove skill sets, but these should be examined closely — certifications from the professional associations are okay. However, if the company hired the applicant on an H-1B, then the person obtained that experience and certification through the company, it won’t work. The reasoning is that the company could have trained an American or a green card holder instead.

There are sometimes exceptions. It may be permissible if the job is at least 50% different from the applicant’s current position. Another scenario involves affiliated companies where the person got the experience at company A, and now they’re going to work for company B – that’s okay too.

Specific Vocational Preparation (SVP) Rating 

The DOL determines which type of degree and how much experience is necessary for a job, and the company can find those in the Dictionary of Occupational Titles. The company’s advertisements should align with the DOL unless there is a business necessity. A business necessity would justify why the company needs a person with more experience than is typically required.

For example, a bank is building financial software for Fortune 500 companies using blockchain technology. Because the company is investing millions if not billions, two years of experience is not enough, and so they are asking for five years of experience.

Advertising for the Job

The company should put the available job advertisement in these three places:

  1. The State Department of Labor for 30 days. Some state workforce agencies require posting the salary, and some do not.
  2. Work location – the ad should be conspicuous and include the salary so that current employees know of the job opening. 
  3. Two ads in the largest newspaper in the metropolitan statistical area.

The company should also run three more ads. Other acceptable places to advertise are:

  1. TV or Radio
  2. Trade Journal
  3. Local newspaper or on their website
  4. Company Website

Ad placement is not limited to these areas.

Once the ad has run for at least 30 days, there is a 30-day quiet period. The company continues running any single ad during the quiet period and begins accepting applications.

Recruitment Process

Sometimes, companies will decide to hire multiple people. If any American or green card holder comes forward, the company doesn’t have to hire them. However, if the company decides not to hire any American or green card holder that meets the minimum requirements, they can’t hire the intending foreign national either. If the company employs a qualified American or green card holder, they can hire a foreign national in addition.

Filing the Labor Certification form DS989 and the I -140

Once the hiring process is complete, the company files the DS989 or Labor Certification with the Department of Labor, noting any business necessity. It takes about six months to get the Labor Certification back.

When the Labor Certification is approved, the company can file the I-140 with USCIS. At this time, the company should already have the employee’s letters and any supporting documents. Included with the I-140 is evidence of the employee’s requisite education and experience. 

The I-140 can be filed with premium processing and will take two weeks. Otherwise, processing can be as long as six months.

If everything runs smoothly, in about 4-7 months, the employee can get an Employment Authorization Document (EAD) and a travel card, also called advanced parole.

Altogether, the Labor Certification Process, EAD, and travel card take about 1.5-2 years.

Processing Times and Priority Dates

Priority dates are an issue that is tricky for some countries. Right now is an excellent time to file EB-2 and EB-3 green cards because so many countries’ priority dates are “current.” Meaning both the I-140 and the Adjustment of Status, which is the process that allows you to move from one visa to another visa, can be submitted at the same time.

The priority dates for some countries, such as India and China, are much longer because of a backlog. For these people, the wait is around seven years.

The tech industry, medicine, and higher education often recruit foreign talent using the H-1B visa, usually valid for up to six years. However, suppose a company initiates the Labor Certification process for the PERM before the end of the fifth year. In that case, the company can file for an H-1B visa extension in one-year increments until the I-140 component is approved. After the I-140 is approved, the H-1B extension is available in three-year increments.

Spouses of H-1B holders are called H-4 dependents who are eligible to apply for work authorization (EAD), allowing families to have two incomes while they wait.

Putting it all Together

In a nutshell, the Labor Certification Process is complicated, time-consuming, and challenging. We work closely with companies to get through the process and provide free strategy sessions for those looking to initiate the process.

Watch or listen to the episode below.




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About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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