Navigating the PERM Labor Certification Process
The EB2 visa (or EB2 Green Card) is for employment-based “exceptional” ability (first preference) or advanced degree permanent residence (second preference).
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This visa is available to two main types of applicants:
- Members of professions who hold an advanced degree (or equivalent);
- 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 EB3 visa is a permanent residence U.S. visa/Green Card for “skilled, professional, or other workers.” There are three routes to the qualification:
- Skilled Worker: The position demands at least two years of relevant employment experience or training. In addition, a Labor Certification Process is required to demonstrate that no qualified workers are already available in the U.S. to fill the position.
- Professionals: The professional position in question requires a bachelor’s degree (or foreign equivalent).
- Unskilled / “Other” Workers: The third option covers jobs that can be performed with less than two years of training. (temporary or seasonal jobs are excluded).
Establishing the Prevailing Wage
Before a company can initiate the Labor Certification Process, they have to make sure they are offering the requisite amount of money for the job or the prevailing wage. The first step is to send a request to the National Prevailing Wage Center. These requests have been taking a long time, anywhere from six weeks to six months. Once the prevailing wage is established, the company can start the advertising process.
The Labor Certification Process
The first thing that a company needs to do is to determine the job requirements, not just the duties. The job requirements help determine if there are any Americans or green card holders willing or able to take the job. Companies can do this by using Indeed.com or Monster.com to review industry standards.
Job Requirements and Supporting Evidence
Finding out what the minimum requirements need to be is important, and there are a few different ways to determine that. There needs to be substantiated proof that the potential employee has the experience with a particular skill set and worked for said company.
Evidence:
- A letter from the company written by a supervisor or anyone who was overseeing them. The letter is critical because it endorses the specific skill and amount of time spent with the company.
- Contracts and/or pay slips can be used as supporting evidence.
One of the things to remember is that skill sets can be learned concurrently. There can be four skills that were all learned concurrently 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 can be used to prove a skill set, but these should be examined closely — certifications from the professional associations are okay. But if the company hired the applicant on an H1B and the person obtained that experience and certification with 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. If the job is at least 50% different than the applicant’s current position, it may be permissible. Another scenario involves affiliated companies: the person got the experience at company A, and now they’re going to work for company B – that’s okay too.
Standard Vocation Preparation (SVP) Rating
The DOL determines the type of degree and how much experience is needed for a job. The company’s advertisements should be in line 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. Let’s say 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 available job needs to be advertised in these three places:
- The State Department of Labor for 30 days. Some state workforce agencies require the salary to be posted, and some do not.
- Work location – the ad should be placed in a conspicuous place and include the salary. This is to inform current employees of the job opening.
- Two ads the largest newspaper in the metropolitan statistical area.
Three additional ads should also be run. Some other acceptable places to advertise are:
- TV or Radio
- Trade Journal
- Local Newspaper and/or on their website
- 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. During the quiet period, the company continues to run any one of the ads and begins accepting applications.
Hiring the Right People
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 nationals. If the company hires a qualified American or green card holder, then they can also hire a foreign national.
Filing the Labor Certification form DS989 and the I -140
Once the hiring process is completed, 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, then the I-140 can be filed with USCIS. At this time, the company should already have the employee’s letters and any supporting documents. Evidence of the employee’s requisite education and experience is filed with the I-140.
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.
Priority Dates and the Backlog
Priority dates are an issue that is tricky for some countries. Right now is an excellent time to file EB2 and EB3 green cards because so many countries are “current.” This means you can submit the I-140 and the Adjustment of Status, which is the process that allows you to move from say an H1B to another visa.
The priority dates for some countries, such as India and China, are much longer because they are backlogged. For these people, the wait is around seven years.
Many companies recruit foreign talent, often using the H1B visa because it is readily available in their area. This is a common practice in the tech industry in particular, but not limited to medicine or higher education.
The H1B visa is valid for up to six years, but a company can file to initiate the Labor Certification process for the PERM before the end of the fifth year. This allows the H1B visa to be extended in one-year increments until the I-140 component gets approved. After the I-140 is approved, the H1B can be extended in three-year increments.
Spouses of those H1B holders are called H4 dependents who are eligible to apply for EAD cards. This is done so families can have two incomes while they wait.
Putting it all Together
In a nutshell, the Labor Certification process is complicated, and it’s hard. There are a lot of ways to mess it up and a lot of trap doors. However, we work with the companies closely to get through the process. We also provide free strategy sessions for those looking to initiate the process.
About the Author Ben Hunt
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