PERM labor certification is a crucial step for many foreign nationals seeking employment in the United States. However, the process can be lengthy and intricate, which is why it’s critical to have the backing of an experienced immigration attorney by your side.
Naya Immigration has a proven track record of successfully guiding clients through the PERM process, ensuring compliance with complex labor regulations. Contact our California immigration law firm to get started and see how to get started on the right foot. We’d be happy to assist you in obtaining your PERM labor certification.
What Is PERM Labor Certification?
PERM stands for Program Electronic Review Management. It’s a labor certification process established by the U.S. Department of Labor (DOL) as a way to help foreign nationals gain a rite of passage into the United States while protecting the rights of workers born in the United States. PERM only applies when there are no qualified American workers available for a given position.
There are numerous benefits to be gained for all parties involved, including:
- Prevents Exploitation: PERM protects U.S. workers by ensuring business owners can’t replace qualified American employees with cheaper labor from abroad. It ensures those of exceptional ability have a pathway to enter the United States when there are no other options.
- Promotes Fairer Wages: Many undocumented immigrants don’t have much in the way of rights, allowing employers to pay them far below the minimum wage. However, those in the U.S. through the PERM immigrant visa have greater protections to receive a wider range of benefits, including better pay.
- Safeguards American Citizens: If employers can pay immigrants lower wages, it can negatively impact the bargaining power of qualified U.S. workers. That’s not a factor with PERM.
- Improves American Way of Life: PERM aids with overall growth in the U.S. economy. It brings the best and brightest from around the globe, such as those with advanced degrees, to contribute to our businesses.
PERM is a win-win for immigrants and U.S. citizens alike, but it’s not easy. Many PERM regulations are in place to ensure business owners don’t try to take advantage of the system.
PERM Labor Certification Process
The first step to an employer pursuing the PERM labor certification process is to make a good faith effort to fill the open position with a qualified U.S. worker. This includes placing ads that someone could easily find when searching for a new position. Ideally, the ad will remain up for at least 30 days on both online forums and a local newspaper to see if any suitable candidates are in the U.S. labor market.
Resumes alone typically aren’t enough for a recruiter to outright object potentially suitable candidates. Interviews must also be conducted, and if the employer is going to outright reject everyone, there needs to be valid reasons for doing so. Throughout the hiring process, the recruiter must keep detailed documentation of the recruitment steps to prove to the U.S. Department of Labor that a worthy effort was made to find someone who could fulfill all of the job duties.
Any disqualifications must be lawful. For example, a recruiter can’t gloss over someone for being overqualified as long as they have the degree and any relevant experience needed to do the job. The DOL has a list of requirements typically needed for each job, so the department will know if a recruiter is being overzealous in what they want. In the event the employer has more job requirements that normal, they need to make a strong case.
In the event a recruiter genuinely can’t find any U.S. citizens to do the job, they can file an application with the DOL, which will make the final determination if the employer, in fact, complied with all of the above steps. This is to ensure no qualified candidates were disenfranchised as part of the hiring process. If that’s the case, the process of permanent labor certification will begin with the DOL certifying the Application for Alien Labor. From there, the employer can file an Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Service.
When submitting the PERM application to the DOL, the employer must provide all pertinent details about the job. This includes what the position will be responsible for and what the wage will be, all of which must be determined as fair and within the scope of hiring specialized talent from elsewhere.
The Guide To The Perm Process
- Get Started Early: Seeing how lengthy the process PERM can be, it’s vital to start early. If an employer believes they’ll need to hire someone from out of the country, they should start searching for applicants right away to prove that hiring an immigrant is the only way to do the job.
- Maintain All Documentation: The DOL will want proof of everything. Maintain all your hiring records and applications. Failing to provide everything in a timely fashion could further delay the process.
- Get Professional Help: Hiring an experienced attorney from Naya Immigration can help ensure you comply with all DOL’s standards. Even if PERM isn’t right for you, there may be another foreign labor certification to benefit from.
What Are the Eligibility Requirements?
Various requirements must be met for both the employer and the foreign national seeking to come to the United States. This includes what types of jobs typically require the PERM labor certification, which are generally those that fall under Schedule A. This is a list of occupations the Department of Labor has designated as having a shortage within the United States.
Schedule A jobs are pre-certified for the immigration process and fall under two categories — Group I (those in the healthcare sector, such as therapists and professional nurses) and Group II (those who demonstrate exceptional ability in the arts, performing arts, and sciences). When hiring someone through Schedule A, the employer must also file an uncertified application for permanent employment certification with U.S. Citizenship and Immigration Services (USCIS) when they file the Immigrant Petition for Alien Workers.
Other jobs can certainly qualify under PERM, but the employer must reach certain requirements.
- U.S.-Based: The job must be based out of the United States. It can be a corporation, sole proprietorship, or partnership, but it must ultimately be a U.S. company.
- Full-Time Work: The employer must be willing to offer the applicant a full-time position. There’s also the idea the job will be permanent, so the individual will not be let go anytime soon.
- Livable Wage: The employer has to offer a wage that is even or greater than the typical wage for the job being done.
- Proper Recruiting Efforts: The U.S. employer must prove they conducted a comprehensive recruitment process to find someone in the United States already.
Certain requirements are also in place for the worker who will receive the job offer abroad.
- Proper Qualifications: The foreign national must have all pertinent qualifications to do the job. The employer may even need to prove how the individual goes above and beyond what was available in the United States to begin the labor certification application.
- Availability to Work: Upon PERM approval, the foreign national must be able to begin working for the U.S. company within 30 days.
There are additional considerations to make if the foreign worker is already in the United States via an H-1B visa. They may be able to acquire an extension of PERM labor certification.
Who Can Apply?
Only the U.S. employer can file for the PERM labor certification, not the foreign national who may be brought over. The PERM filling fee for Form I-140, which is essential, will cost $715, which the employer is also responsible for. USCIS offers an expedited service that comes with a $2,805 fee where a promise is made to provide a decision within 15 days as opposed to the usual 45 to 60. In the event the USCIS fails to make a decision within that timeframe, the fee would be refunded.
It’s possible the DOL will request a PERM audit. This is not an outright denial; instead, it’s a chance to provide additional details or documentation that DOL is requesting correct any mistakes made the first time around and to definitively prove that there’s a good reason to bring a foreign national to work for your organization. It’s a good idea for employers to prepare for an audit, as recent statistics show that one out of every three PERM applications get audited.
It’s also possible to receive a denial, but that doesn’t mean all hope is lost. The employer can submit a request for reconsideration if they believe the DOL made the denial in error. It’s possible the Department of Labor will reconsider if a good enough case is made, but the DOL may refuse. If that happens, the department will shift to a request for review to the Board of Alien Labor Certification Appeals (BALCA). Processing time under this can vary, but it can take over a year to go from the docket issuance to a final decision, which could still be a denial.
While only an employer can pursue PERM labor certification, the foreign national could apply for a national interest waiver (NIW) on their own. This is a method for individuals to obtain a green card even without a job offer presently active. The NIW is a provision under the EB-2 employment-based immigrant visa category where a person demonstrates their line of work could be an asset to the country. Fields that usually qualify for an NIW include healthcare, education, real estate development, business development, aerospace, STEM, and information technology. Approval for an NIW would also make it easier for an individual’s spouse and children to apply to enter the United States, too.
Naya Immigration Is Here to Help With Your PERM Labor Certification
At Naya Immigration, we provide an array of services to aid with the immigration process, including PERM labor certification. We can represent you throughout the filing process and help with getting any documentation in order the DOL will require. This includes assisting you in the event the DOL requests an audit, with changes being needed to the employer files.
California ranks among the states with the most PERM applications in any given year. It happens all the time, so if you meet the minimum requirements, contact our office to get started. Don’t let your job opportunity go to waste and get the right talent for your business soon.
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