x
Book an Appointment
Awesome Image

PERMANENT RESIDENT STATUS THROUGH THE LABOR CERTIFICATION PROCESS

We're experts in immigrant work visas.

With certain exceptions, aliens who come to the United States to reside permanently must have a job offer which the United States Secretary of Labor has certified will neither displace qualified American workers nor adversely affect wages and working conditions. Certification is obtained by an employer who files an Application for Alien Employment Certification on behalf of an employee. This article provides a very general outline of one of the most complex areas of immigration law - labor certification.

THE BASICS IN GETTING LABOR CERTIFICATION

Filing for labor certification is a two tier process involving the State Department of Labor and the federal U.S. Department of Labor through the Regional Office. The U.S. Department of Labor (DOL), through the Employment and Training Administration (ETA), has created a form which an employer must file with the State Department of Labor Employment Service Agency (SESA) in an effort to prove there are no qualified U.S. workers available. The SESA reviews the application for completeness, ensures compliance with regulatory standards, then places the job offer in a state-wide computerized job bank. The SESA also directs the employer in undertaking a recruitment process by placing advertisements through the SESA for the position and posting an internal notice of job opportunity at the proposed place of employment. All applications for the job opportunity received by the SESA are forwarded to the employer for review.

Upon completion of the recruitment process, an employer will submit a complete report of the recruitment results documenting the employer's contact with the referred applicants and the lawful job related reasons for which the applicants were rejected to the SESA, which is then forwarded to the regional DOL. The DOL will either approve (certify) the application or issue a Notice of Findings (NOF). The NOF is a notice of deficiencies in the application with suggestions for corrective action. After submission of a response to the NOF, the DOL will issue a final decision certifying or denying the application.

COMPLETING THE JOB DESCRIPTION AND QUALIFICATIONS

The job opportunity must be described in the application without unduly restrictive requirements. Requirements which seem specifically tailored to the alien's specific education or experience will be rejected. Foreign experience or language requirements will be closely reviewed and an employer must be able to document the "business necessity" of these requirements. Any job requirement beyond those "normal for the occupation" as defined by the DOL will be scrutinized carefully and the employer will have the burden of proving a bona fide business necessity for these "restrictive requirements".

In completing the alien's professional experience and academic qualification, the alien must meet the minimum standards for the job opportunity at the time the application is filed and cannot be trained by the employer in the job offered without the employer offering such training to U.S. workers. If the alien is currently in the job offered, the alien must have met the employer's minimum standards at the time of hire.

WAGE OFFERED

The SESA will make a determination of the prevailing wage for the job offered. The employer must offer at least ninety-five per cent of the established prevailing wage. If an employer disagrees with the SESA's prevailing wage determination, it is possible to provide alternative information regarding the prevailing wage. After what is usually a lengthy review process, the DOL will determine which prevailing wage determination is correct.

POSTING AND NOTICE

Unless a union represents the employer's employees in the classification and area in which the job offer is made, a notice must be conspicuously posted at the job site for ten business days. The notice must contain a description of the position as well as the salary offered. Although the posting of specific wage or salary information is inconsistent with the practices and policies of most employers, there is no waiver for this requirement.

ADVERTISING AND RECRUITMENT

Generally, under direction of the State Department of Labor SESA an advertisement must be placed in a newspaper of general circulation for three consecutive days (or in the appropriate professional trade publication for one or two days). The employer must provide a draft ad to the SESA for approval. The regulatory requirements for the contents of the advertisement are quite specific and include a description of the job duties as well as the experience and education requirements and the wage offered. The advertisement will direct responses to the SESA without any indication as to the name of the employer.

As part of the application, the employer certifies that the job opportunity has been, and is, clearly open to any qualified U.S. worker. The employer is responsible for keeping a record of all applicants and documenting why each rejected applicant is not available or qualified for the position. The SESA will require submission of this documentation along with the resume submitted by each applicant. When an applicant is clearly unqualified based upon a review of the submitted resume, the employer need not conduct an interview. If the resume does not conclusively eliminate the applicant as unqualified, then the applicant should be contacted and interviewed by the employer (this can be done by telephone). Documentation of the employer's contact efforts is also required. The certification will not be granted if there is a qualified and available U.S. worker.

APPROVED CERTIFICATION

The complete labor certification process (with the exception of the RIR discussed below) may take from 12 to 36 months depending upon the job position and the location of proposed employment. Once obtained, a labor certification is critical documentation to obtain permanent residence through a second or third preference employment based immigrant visa petition.

REDUCTION IN RECRUITMENT REQUEST

As a result of General Administrative Letter 1-97 (GAL 1-97) implemented on October 1, 1996, an approved reduction in recruitment (RIR) request will result in expedited SESA and DOL processing reducing the labor certification processing time by one to two years. RIR requests are likely to be approved for those applications which involve positions for which there is little or no availability of U.S. workers where the employer can demonstrate an adequate prior recruitment effort within the last six months. Such recruitment should involves advertisements in newspapers, trade publications, Web sites, through recruiters and an internal posting at the employer's premises. Recruiting commonly used in the industry must be fully documented and the position description cannot contain special requirements. Depending on the proper geographic location for filing the labor certification, SESAs have varying individual requirements for RIR processing.

Get The Visa
Resource Material

Nunc quam arc pretium quis lobortis sem consequat conse tetur diam nunc bibend.

Where and How to Apply for an Immigrant Visa?

Contact Fuller and Fuller today to get started on your application.

Awesome Image

Our Process

  • Please reach out to us by email or phone to schedule a consultation with one of our attorneys.
  • Our attorneys will work with you, after analysis of the employee's qualifications, to determine the optimal visa category for the PERM application.
  • We will then provide you with a checklist of documents and information and information needed from the prospective foreign national employee. We will also provide you with an estimated flat fee for the case and discuss the filing fees and other disbursement expenses you can anticipate.
  • We will prepare the required documents for your application, and subsequent immigrant petition and adjustment of status application, and will send them to you and the employee for review and signature.
  • We will then submit your PERM application to the U.S. Department of Labor ("DOL") and subsequent immigrant petition and adjustment of status application (if an immigrant visa is available) to the U.S. Citizenship and Immigration Services (“USCIS”) or will provide the necessary documents to you to make a personal application to a Consular Officer at a U.S. Consular Post or to a U.S. Customs and Border Protection (CBP) Officer at a U.S. port of entry.
  • We will track the progress of your case and keep you updated and will provide you with instructions for making and attending an immigrant visa interview appointment at a U.S. Consular post (if required). We will also provide both the employer and the prospective foreign national employee with information on the employee’s new legal permanent resident status.

How To Prepare

Prior to a consultation with one of our attorneys, please be prepared with the following information so that we can best help you determine how to proceed: A copy of the prospective immigrant employee’s most up-to-date resume; Information on the prospective immigrant employee’s current U.S. immigration status (if any) and any previous U.S. visas held; and Information on the type and duration of work that the prospective immigrant employee is expected to complete in the U.S.

Frequently asked Questions

  • What is a Labor Certification?

    A labor certification is a certification by the U.S. Department of Labor that there are not sufficient qualified, willing, available and able workers to fill the position that is being offered to the alien beneficiary. The certification, in turn, allows an employer-petitioner to file an EB-2 or EB-3 employment-based immigrant petition on behalf of the foreign national employee. It is the first step in most EB-2 and EB-3 employment-based immigration cases. EB-1 and EB-5 self-petitioners and beneficiaries, beneficiaries of National Interest Waivers, and those seeking employment in schedule A and sheepherder occupations, are exempt from filing labor certification applications with the DOL prior to filing the I-140 immigrant petition.

  • Q: Can a Company apply for a PERM labor certification on behalf of a person who is not currently an employee or an employee who is abroad?

    Yes. A labor certification application addresses future employment. You are not required to work for the employer until you obtain your green card approval or be present within the United States. You do not need to work for the company-petitioner while the company is still petitioning for you, although certain visa categories will make the PERM process far more convenient for the company-petitioner and prospective employee.

  • How does my PERM Application interact with my H-1B Status?

    You may be eligible for an extension of your H-1B status past the six-year statutory maximum if your PERM application was filed 365 days or more prior to the expiration of your sixth year of H-1B status. You may also be eligible for an H-1B extension if you have an approved I-140 Petition. Please contact one of our experienced attorneys to learn more.