Labor Certification (PERM)
What is labor certification?
Labor certification is the first step in the process of obtaining permanent residency (or “getting a green card.”). It is an official government finding that (1) no U.S. workers, who are available, willing, and able to fill the position, can be found at the time of filing the application and in the geographic area where the job exists; and (2) the individual’s employment will not “adversely affect” the wages and working conditions of similarly situated U.S. workers.
Who needs labor certification?
The company must file a labor certification application with the Department of Labor (DOL) either by mail or online at http://www.plc.doleta.gov/. After the labor certification application is submitted to the DOL, the application is screened and either certified, denied, or selected for audit.
Immigrant visa applicants in the second preference (EB-2), alien with an advanced degree, bachelor plus five years of experience, or exceptional ability and third preference (EB-3), skilled workers, professionals, orunskilled workers. EB-1 applicants(alien with extraordinary ability, outstanding researcher/professor and multinational manager/executive) do not need labor certification. National interest waiver(EB-2) applicants do not need labor certification. EB-4(religious) and EB-5(investors visa) do not need labor certification. Nurses and other qualified medical professionals do not need labor certification.
Requirements for the employer
The employee must meet the employer’s actual minimum requirements for the job at the time the labor certification is filed, including holding the appropriate degree and field of study as well as demonstrate the relevant work experience or required training, where applicable. Such proof of meeting the actual minimum requirements would include diplomas, transcripts, and experience letters from former employers.
Before a company may submit a labor certification application, they must first complete a set of recruitment steps. The purpose of the recruitment process is to show that the employer has made an effort to hire U.S. workers for the offered position, but has been unsuccessful in identifying qualified and available U.S. workers. There are two types of recruitment required depending on if the job is professional or non-professional. A professional job is one that at minimum requires a bachelor’s degree or two years of experience. Non-professional jobs recruitment steps include an internal job posting, advertising in in-house media, job order, and advertisements. Professional jobs require an additional three recruitment methods chosen from ten possible recruitment methods, including job fairs, company web site, job search web site, on-campus recruiting, trade or professional journals, private employment firms, employee referral program, campus placement office job opening notice, local/ethnic newspapers, or radio/television advertisements.
Pitfalls for small business entities
Small business entities may be closely scrutinized by the DOL to see if the job has been clearly open to U.S. worker. If the DOL decides to audit your case, the employer would have to show the existence of a bona fide job opening and other supporting documents relating to the company. Other common pitfalls in the labor certification process can include: not adhering to recruitment deadlines, company layoffs and their effects on the labor certification, and ability to pay the prevailing wage.
At Baughman & Wang, we have more than 17 years experience in filing labor certification and employment based visa petitions. Our overall suscess rate are more than 95%.