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Labor Certification (PERM)

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Nov 30, 2018)

Before filing certain petitions for immigrant workers (including professionals, skilled workers, and unskilled workers), employers must file an application with the United States Department of Labor to receive a labor certificate. The purpose of labor certification is to ensure that qualified, American workers are not available in the United States and that the employment of the foreign-born worker would not displace American workers.  Applications for labor certificate are processed through a system known as Program Electronic Review Management (PERM).

Except in limited circumstances, immigrant work visas are subject to labor certification.  For a list, see Employment-Based Immigrant Visas.

Note that an approved labor certificate is not a work permit and does not confer any immigration benefits upon the foreign-born worker (the beneficiary).

Professionals and workers representing the U.S. labor market

What is the purpose of labor certification?

The purpose of the labor certification process is to protect employment opportunities for U.S. workers. A labor certificate signifies that after a reasonable search, the employer has not been able to find qualified and willing workers who are ready to fill the position for which the employer plans to hire the foreign-born worker (the beneficiary). Obtaining a labor certificate is necessary for filing an immigrant worker classification petition in several employment-based immigrant visa categories.

Who may file an application for labor certification?

The U.S. employer, who wishes to hire a foreign-born worker, must file the application for labor certification. Labor certificate applications may not be filed by foreign-born workers.

What steps should the employer undertake before filing the labor certification application?

Preparation of a labor certification application is extremely complex. There are many factors to be considered, including the job description, employer's business structure and financial circumstances, position offered, the worker's qualification, the salary offered, the prevailing wages for the position in the locality, the availability of media at the locality, and the ultimate immigrant category for which a Petition for Alien Worker (USCIS Form I-140) is to be filed.

There are several steps that the employer and employer's immigration counsel must undertake.  These steps are described below in general terms. Much of the work will be completed by the immigration attorney. However, there are some steps that must be completed by the employer or in consultation with the employer.

  • Describe and formulate the job description, including detailed description of duties that the employee would be required to perform while on the job.
  • Ensure the foreign-born worker's qualifications would match the job description.
  • Determine the prevailing wages for the position and location where the job is to be performed, either by researching the available resources of the Department of Labor or by requesting a Prevailing Wage Determination (PWD) from the National Prevailing Wage and Helpdesk Center (NPWHC).
  • Prepare the text of advertisements in accordance with the rules of the Department of Labor.
  • Advertise the job according to the rules and requirement of the Department of Labor.  This requirement differs from job classification to job classification and from locale to locale.
  • Interview any U.S. workers who respond to the advertisement. If none of the applicants meet the job requirements, prepare a report justifying the employer's reasons for not hiring them.
  • Prepare a memorandum to support the determination of the prevailing wage, if no Prevailing Wage Determination was requested.
  • Prepare documentation showing the employer's ability to pay the prevailing wages (see below).
  • File the application with the Department of Labor and respond to any audit requests.

Can an employer obtain a labor certificate for a part-time job?

No. The position for which labor certification is sought must be full-time.

Does the employer need to be profitable to apply for labor certificate?

No. The employer only needs to show the ability to pay the prevailing wages.  The employer may be a startup, which has not yet been profitable.  This is common, especially with technology startups.

Alternatively, the employer may be going through a revival period and is reformulating its business plan. In short, what is important is the ability to pay the prevailing wages.

The employer may be required to submit such documents as tax returns, business plans, or financial statements (to give a few examples) to justify its ability to pay the prevailing wages. What needs to be submitted depends on the circumstances.  The attorney will advise the employer as to what needs to be submitted. Those documents need not be disclosed to employee.

Who is a U.S. worker for purposes of a labor certification?

For labor certification purposes, U.S. citizens, permanent residents, and specifically authorized aliens, such as asylees, are considered U.S. workers.

What is the application fee for filing a labor certificate application?

None. The U.S. Department of Labor does not charge any application fee for filing a labor certificate application. There would be petition and application fees for subsequent filings with the USCIS.

Other expenses associated with the application include attorney's fees, advertising expenses, expenses of interviewing any prospective applicants, and other expenses associated with the preparation and submission of the application.

Who should pay the expenses for filing a labor certificate application?

The law requires that all expenses be paid by the employer.  The expenses may not be shifted to the employee.

How long does the labor certification process take?

Currently the U.S. Department of Labor's processing time for labor certification (PERM) is about 3-4 months. See iCERT Portal (click on “Processing Times” tab). Depending on the circumstances and the backlog, the processing time can take a few additional months.

Considering the recruitment process and the period needed to file the labor certificate application, the entire process may take between 6-9 months. If your case is selected for audit (see below), add another five (5) months to the process.

What is the Department of Labor's audit process?

Ordinarily the supporting documents are not filed with the PERM application. From time to time, the Department of Labor selects some cases for an audit. In that event, the employer must file the supporting documents.

If the employer fails to present supporting documents, the documents appear to be insufficient, or contain a misrepresentation, the Department of Labor may subject the employer to “supervised recruitment” practices for future PERM applications.

Common reasons seem to include cases where the employee or employee's family have a financial interest in the employer, where the job requires a foreign language and the requirement is not common or obvious, or where the job is a telecommuting position, as well as a purely random selection of cases.  See Atlanta National Processing Center Audit Tiers. The audit process can add as much as five (5) months to the labor certification process.

Is there a procedure to amend a filed application for labor certification?

No. If you discover an error or wish to amend the application after filing, your only remedy is to withdraw the pending application and refile.

How long is the validity period of the labor certificate?

A labor certificate issued by the U.S. Department of Labor is valid for 180 days, i.e., your employer must file the Immigrant Petition for Alien Worker (USCIS Form I-140), which is to be supported by that labor certificate, within 180 days. A petition is deemed filed when it is received, together with all supporting documents and the required fees, by the USCIS.

How long is the employer required to maintain supporting records for the labor certificate?

Not all supporting materials are sent to the Department of Labor with the application for labor certification. The employer, however, is required to retain these records for five (5) years from the filing date.

How is the priority date determined for immigration purposes?

For immigration purposes, the employee's priority date is the date when the labor certificate application was submitted to the Department of Labor, assuming the labor certificate application is approved.

Can I work in the United States on the basis of the labor certificate?

No. Neither making of the labor certificate application nor the approval of the application would allow the foreign-born employee to accept employment in the United States.  However, you may work in the United States, only if your current nonimmigrant status already allows you to do so.

 

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