Frequently Asked Questions About PERM Labor Certification
When is a PERM labor certification required?
Most employment-based immigration cases require the labor certification as a first step.Typically, foreign nationals seeking to immigrate in the second (unless the individual obtains a National Interest Waiver) or third employment based preference classifications are inadmissible unless the Department of Labor (DOL) has first issued a labor certification.
Are there any exemptions to the labor certification requirement
All family-based immigration cases do not require labor certifications.
For employment based immigration, following individuals who fall under the first, second, fourth and fifth preference classifications also do not require labor certification:
- extraordinary ability alien (EB-1a)
- outstanding professors or researchers (EB-1b)
- multinational executives or managers (EB-1c)
- religious workers (EB-4)
- aliens who have worked abroad for the U.S. government (EB-4)
- alien investors in new commercial enterprises (EB-5)
- aliens who qualify for a National Interest Waiver (EB-2 NIW)
- physical therapists and registered nurses (Schedule A)
How is the Labor Certification process initiated?
Employers interested in initiating the Green Card process on behalf of a foreign national beneficiary should contact our office. Detailed information discussing the Green Card process and labor certification will be forwarded to the employer and the beneficiary. In addition, the beneficiary will be forwarded a questionnaire to complete and return to the firm. Upon receipt of the completed questionnaire, attorney will arrange to discuss the process with the employer and the beneficiary and develop the best strategy for their case.
Who is the petitioner in a labor certification?
The employer is the petitioner in a labor certification and files the application on behalf of the foreign national.
What is prevailing wage?
Prevailing wage is a minimum wage determined by the State Workforce Agency (SWA) for a particular position in a particular geographic area. For each labor certification, the prevailing wage is determined by the SWA based on the minimum requirements and the location of the position.
In order to obtain a labor certification, the employer must show that the salary offer for the position involved in the labor certification is no less than the prevailing wage determined by the SWA.
May the employer rebut the prevailing wage determination?
In certain instances, employers may provide countervailing evidence to rebut the state workforce agency’s wage determination. For instance, employers may produce a private wage survey to establish that the wage offer is appropriate. However, the survey must meet certain guidelines in order to be accepted by the state workforce agency.
Is there a waiting period before the employer can initiate the labor certification process for foreign employees?
No. Employers may initiate the process at any time. Employment with the petitioning employer is not a prerequisite to filing a labor certification on a foreign national's behalf.
What are unduly burdensome requirements?
The minimum job requirements listed on the labor certification must accurately reflect what is necessary for satisfactory performance of the job duties. A demand for skills, knowledge, abilities, and conditions of employment that exceed what is normally required to satisfactorily perform the job described are considered “unduly burdensome or restrictive” to U.S. workers. Employer must provide a business necessity letter to justify such requirements otherwise the labor certification will be denied.
Can the beneficiary use experience gained on the job?
Experience gained by the foreign national on the job generally may not be reflected in the minimum requirements for the position involved in the labor certification. There are two reasons for this: (1) Employers are prohibited from imposing job requirements in a position where it previously provided on the job training, and (2) Employers may not impose higher requirements for a position in which it previously hired a foreign national that possessed less experience.
However, there are exceptions to this general rule. Please contact our office for a detailed analysis for your specific situations.
Where is the labor certification filed?
Depending on the job locations, Labor certifications are filed with the two DOL regional processing centers in Chicago, IL, or Atlanta, GA.
What is a Priority Date and why is it significant?
The United States uses a quota system under which immigrant visas for both employment-based and family-based petitions are issued. Visas are issued based on the first date the employer or alien submits an application to the U.S. government.
For PERM based immigration application, the date the PERM application is received by DOL serves as an applicant's "priority date." Individuals seeking to apply for permanent residency must have a "current" priority date before they can file adjustment of status application (I-485 filing).
Does a labor certification confer employment authorization?
No, an approved labor certification only allows employer to file an EB-2 or EB-3 category immigration petition for the foreign national. The filing or approval of a labor certification does not confer work authorization. If the foreign national wants to work for the petitioning employer, s/he is required to maintain a valid work authorized nonimmigrant visa (H1, L1, etc.) or Employment Authorization Document (EAD) issued by the CIS.
Does an approved labor certification provide foreign national legal status within the U.S.?
No. Labor certification is only the first step for foreign national to apply for permanent residence. It does not provide foreign national any legal status in the U.S.
What happens to the labor certification case if the employer petitioner goes out of business?
The labor certification petition may be denied.
What types of expenses should I expect to incur during the labor certification process?
There are two major costs involved in a labor certification: advertising fees and attorney's fees. The cost of advertising for the available job position can vary from several hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisement must be placed. There is no government filing fee required for a labor certification application.
Who should bear the cost related to labor certification?
Under the new DOL regulation, the employer must bear the cost related to labor certification. The foreign national can pay the cost related to I-140 and I-485 filings.
Can an employer apply for a labor certification on behalf of a person who is not currently an employee?
Yes. The labor certification application is filed for prospective employment. The foreign national is only required to work for the employer when the green card is approved. S/he does not need to work for the employer/petitioner while the labor certification is in process. If the foreign national is already working for the petitioning employer, then changing jobs will not affect the labor certification process provided the sponsoring company agrees to continue the labor certification petition on behalf of the foreign national.
May two or more companies file labor certification applications for the same foreign national at the same time?
I have already filed an immigration petition myself (NIW). Can I also have my employer file a labor certification on my behalf?
In most instances, filing a labor certification in addition to another immigration petition does not pose any conflicts and is permitted.
What is the employer required to do during the job recruitment campaign?
Generally, the employer needs to maintain documentation of all resumes received: both qualified and unqualified. The employer should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep records to explain those applicants who were deemed unqualified.
Who is considered a qualified U.S. worker for labor certification purposes?
For labor certification purposes, a U.S. worker is defined as a U.S. permanent resident or citizen who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the labor certification application.
What factors may affect the outcome of a labor certification?
The following factors may impact the outcome of a labor certification application:
- Minimum job requirements
- Draft of the job description
- Alien’s qualifications
- Job campaign recruitment process
After the labor certification has been approved, what factors may prevent the foreign national from obtaining a Green Card?
If the labor certification has been approved, you are well on your way to obtaining a Green Card. Potential risk factors may include petitioning company's inability to pay and your criminal record or other previous violation of immigration law.