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EMPLOYMENT-BASED CASES

Labor Certification
 

A permanent Labor Certification issued by the U.S. Department of Labor (“DOL”) allows an employer to hire a foreign worker to work permanently in the United States.  The employee need not be in the United States to pursue this process.  In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (“USCIS”), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA).  The DOL must certify to the USCIS that there are no qualified U.S. workers who are able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

As of March 28, 2005, the Labor Certification process through the DOL changed, and is now referred to as PERM.  Through the PERM process the employer must file the Application for Permanent Employment Certification at the appropriate National Processing Center.  Most PERM filings are now completed online via an Electronic Filing system.  Please note that the terms Labor Certification, PERM, and Application for Permanent Employment Certification all refer to the same DOL certification.

The date the Labor Certification application is filed is known as the filing date and is used by USCIS and the Department of State as the beneficiary employee’s priority date.  You may access the [»] U.S. State Department’s Visa Bulletin to learn which priority dates are currently being processed.

Qualifying Criteria

  • Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new Regulations;
  • The employer must hire the foreign worker as a full-time employee;
  • There must be a bona fide job opening available to U.S. workers;
  • Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
  • The employer must pay at least the prevailing wage for the occupation in the area of intended employment.


Process for Filing

  1. Application.  The employer must complete an Application for Permanent Employment Certification.  The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.
  2. Signature requirement.  Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center.  Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
  3. Prevailing wage.  Prior to filing the Application for Permanent Employment Certification, the employer must request a prevailing wage determination from the DOL's National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, D.C.  The employer is required to include on the Application for Permanent Employment Certification the NPWHC provided information: the prevailing wage, the prevailing wage tracking number, the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
  4. Pre-Filing Recruitment Steps.  All employers filing the Application for Permanent Employment Certification (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted specific recruitment prior to filing the application.  The employer must recruit under the standards for professional occupations set forth in the relevant regulations.  The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
  5. Audits/requests for information:  Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
  6. Retention of records.  The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.  For example, the prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
  7. Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail.  However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
  8. In order to file the Application for Permanent Employment Certification an employer must register and establish an account with the DOL's online system. Our office will work with you to guide you in setting up an account prior to the filing of your applications.
  9. Filing by mail.  A National Processing Center has been established in Atlanta that processes all the Applications for Permanent Employment Certification submitted in the United States.  Employers may submit paper applications to the processing center.
  10. Approvals.  If the Atlanta National Processing Center approves the application, the Application for Permanent Employment Certification is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.