Labor Certification and PERM Process: Navigating the Path to U.S. Work Authorization

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Understanding Labor Certification: A Guide for Employees and Employers

In navigating the complexities of immigration, understanding the labor certification process is crucial for both employers and foreign workers. A permanent labor certification is a vital step for employers seeking to hire foreign nationals to work permanently in the United States.

Essentially, applying for labor certification entails going through the following:

  • Prevailing Wage Determination: To ensure fair wages, the US Department of Labor (DOL) assesses the standard wage for the occupation in the intended area of employment.

  • Minimum Requirements: Employers must demonstrate that the job in question adheres to certain minimum requirements and efforts have been made to hire from the local labor market.

  • ETA Form 9089: Submitting this form is an essential part of the PERM process, in which the Employment and Training Administration (ETA) reviews the offered position.

  • Labor Market Test: The process requires testing the local labor market to prove there are no suitable US workers for the position.

Once these steps are completed with due diligence, the DOL can issue a certified labor certification application. This is an affirmation to the US Citizenship and Immigration Services (USCIS) that hiring a foreign worker will not displace or adversely affect working conditions for US workers.

At Andrew T. Thomas, Attorneys at Law, we bring our extensive experience and customized approach to each step of this process. Over the years, we’ve helped countless employers and foreign workers navigate the critical path to obtaining a green card. Understanding and adhering to DOL’s rigorous standards are paramount to providing professional and confidential immigration guidance. We are passionate about keeping families together and helping complete the American workforce with qualified foreign employees.

What Is Labor Certification?

Getting a labor certification is an essential step in the process of obtaining an employment-based visa in the United States. It is a certification from the DOL confirming the need for a foreign worker and that no qualified US workers are available for the position.

Labor certification is a government-issued permission allowing US employers to hire a foreign worker. Its purpose is to protect the US labor market, ensuring that foreign workers do not displace or adversely affect the wages of US workers.

In employment-based visas, labor certification is a prerequisite for certain visa categories, such as EB-2 and EB-3 visas. 

The Role of Employers 

Employers play a crucial role in the certification process. Among their responsibilities include the following:

  • Conduct recruitment according to DOL standards.

  • Apply for a prevailing wage determination.

  • Provide documentation proving the unavailability of US workers.

After the labor certification is issued, employers can file I-140 Petitions on behalf of the foreign workers.

The importance of compliance with government regulations cannot be understated. Missteps can lead to denials and delays. An immigration lawyer can assist employers in navigating this complex process and maintain professional integrity throughout.

The PERM Process Explained

The Program Electronic Review Management (PERM) is a labor certification procedure that’s a mandatory step for many employers who wish to hire foreign nationals to work permanently in the US. It’s a pivotal element in the labor certification process, designed to protect US workers and their wages.

Here is a step-by-step summary of the PERM labor certification process: 

Step 1: Identification of a permanent full-time job for a foreign worker.

The employer must identify the minimum requirements for the job as well as the scope of work.

Step 2: Prevailing Wage Determination

Employers must submit a prevailing wage determination request to the DOL. This ensures the salary offered is comparable to what domestic workers earn in similar positions.

Step 3: Pre-filing Job Order and Recruitment

The employer places a job order with the state workforce agency. Following this, recruitment efforts are made to confirm there are no available US workers for the role. The employer must comply with the Notice of Filing requirement.

Step 4: Application Filing

Upon completing recruitment, the necessary documentation must be prepared, which includes Form ETA-9089. The application will be filed with the DOL.

Step 5: Audit File Preparation

The DOL may request a comprehensive audit file to prove that the recruitment process was conducted.

Employers often face challenges with the complexity and strict requirements of the PERM process. That’s where our hardworking team comes in—navigating through the red tape, avoiding common pitfalls, and addressing potential audits with confidence and precision.

Whether it’s assembling the intricate paperwork or clarifying the stringent PERM process requirements, our dedication to maintaining the integrity of your application is unwavering. Our knowledgeable team, Andrew T. Thomas, Attorneys at Law, understands the stakes are high, and that’s why we’re here—to secure a future for foreign workers and their families in the US with the utmost professionalism and care.

Common Questions and Misconceptions

You may have a number of questions in mind or would like to clarify misconceptions about the Labor Certification and PERM process. Here are some common points of confusion:

Is the permanent Labor Certification process the same as a work permit application? 

No, Labor Certification is applied with the DOL, while the work permit or the Employment Authorization Document is applied with the USCIS. A Labor Certificate does not give a foreign worker an immediate right to work in the United States; it is just a confirmation that there is a position available requiring an additional foreign worker.

Do I need labor certification for all employment-based green cards? 

No, not all. Labor certification is not required for EB-1, EB-4, and certain EB-5 visas. For a detailed understanding tailored to your situation, speak with your trusted immigration lawyer.

How long does the PERM process take? 

The PERM process timing can vary. It involves several steps, including a Prevailing Wage Determination (PWD) and a recruitment period which can take several months altogether. For a more precise timeline, our experience allows us to offer a customized evaluation.

  • Prevailing Wage Determination: The first step is where the Department of Labor determines the appropriate wage for the position.

  • Recruitment: Employers must conduct a recruitment campaign to ensure no willing or qualified US worker is available for the position.

Can I speed up the PERM process? 

There is no premium processing for PERM applications, so we cannot speed up the determination. However, ensuring accuracy and completeness in your application can avoid delays.

We understand the complexities of immigration law and are here to guide you through every step, ensuring your understanding and compliance with US immigration policy. Our approach has helped many navigate the intricate pathways of the immigration system, and we are dedicated to assisting you with the same level of professional and confidential assistance.

Potential Obstacles in the PERM Process

Encountering hurdles during the PERM labor certification process is not uncommon. The following are the usual challenges employers face:

  • Prevailing Wage Determinations: Securing an accurate prevailing wage can be a hurdle. Inaccurate wage determinations can derail the process.

  • Recruitment Efforts: Conducting a labor market test to demonstrate no available US worker could fill the position is necessary. Layoffs affecting the recruitment process are also a serious consideration.

  • Application Accuracy: Even minor errors on the PERM application can result in delays or denials. Diligent review and precision in documentation are paramount.

  • Audit Notification: An audit can significantly extend the timeline of the process. Being proactive in supplying thorough supporting evidence is essential.

  • Backlog Delays: High volumes of applications can lead to processing delays, which are beyond our control but require patience and understanding.

Seasoned immigration lawyers can diligently address these challenges with a tailored approach, ensuring that each step of your PERM process aligns with the stringent requirements set by the DOL. At Andrew T. Thomas, Attorneys at Law, our commitment to your immigration goals drives us to navigate these obstacles with the utmost professionalism and efficiency.

How Andrew T. Thomas, Attorneys at Law Can Assist

At Andrew T. Thomas, Attorneys at Law, we provide premier legal assistance in all aspects of immigration law, including the Labor Certification and PERM process. With our deep understanding of the complex immigration system and our commitment to fostering family unity, we stand ready to support our clients every step of the way.

Assistance Offered

  • Personalized Strategy: We design unique strategies tailored to each client’s specific circumstances, focusing on professional occupations, persons with exceptional ability, business investors, managers, and multinational executives.

  • Experienced Guidance: Our seasoned attorneys navigate the intricate legal requirements, ensuring accurate completion of all necessary documentation for Labor Certification and PERM applications.

  • Legal Knowledge and Experience: Delivering confidential legal advice, we manage the complexities of immigration law with precision and care—be it for family-based petitions or employment-based procedures.

Our Approach

  • Evaluation and planning tailored to your unique situation

  • Meticulous preparation of your Labor Certification and adjustment of status applications

  • Persistent advocacy to achieve the desired outcome for business investors, managers, and multinational executives seeking to work in the US

We take great pride in our ability to help families and individuals reach their immigration goals. If you need guidance through the Labor Certification and PERM process, we invite you to contact us for professional and personalized assistance.