Filing an application for permanent labor certification is one of the final steps of the PERM process. The application must be filed by the employer only after they have obtained a prevailing wage determination and have tested the U.S. labor market for qualified applicants. The following is a review of the permanent labor certification process and how to file an application (ETA form 9089).
What Is Permanent Labor Certification?
A permanent labor certification is provided by the Department of Labor (DOL) on a case-by-case basis. They are given to foreign nationals that are qualified for a certain position in which there is a shortage of U.S. workers. This provides permanent residency for the foreign worker and their immediate family.
Steps To Take Before Filing For Permanent Labor Certification
To be accepted for permanent labor certification, the employer must first prove that they are able and willing to pay a prevailing wage and have shown that they have tested the U.S. labor market and have not found a qualified applicant for the position. Afterward, the employer (not the foreign national) may file an application for permanent labor certification.
Secure Permanent Employment In The United States
Of course, all foreign nationals hopeful of a permanent labor certification must first have an employer that is willing to hire them on a permanent basis and for a prevailing wage. This could be an employer that has hired you legally on a temporary basis through certain government programs. However, having an employer that is willing to hire you and file a PERM application is not all that is required, and the employer must also prove that the applicant is qualified in a role in which there are no equally qualified candidates to fill the open position.
Have Your Employer Obtain A Prevailing Wage Determination (PWD)
Your employer must also obtain a prevailing wage determination (PWD) before filing an application for permanent labor certification. A PWD shows the Department of Labor that the employer has the capability and willingness to pay the foreign national (or whoever fills the position) a prevailing wage. The amount that constitutes a prevailing wage depends on the job duties and necessary qualifications for the position.
The Employer Tests The Labor Market
The way the employer can prove that there is a shortage of U.S. workers willing and able to successfully fill the open position is by testing the labor market. There are various reasons there may be a shortage, such as the job requires extensive qualifications or it is undesirable among local workers in the region. There are certain guidelines to meet when it comes to testing the labor market. Notably, the employer must actively recruit and place ads with the state workforce agency.
Applying For Permanent Labor Certification With Form 9089
A Program Electronic Review Management (PERM) application can be submitted by the employer once the three aforementioned steps are complete. This application is submitted through ETA form 9089, which can be found on the Department of Labor website. The application is electronic, meaning no hard copy is necessary. There is a 30-day mandatory waiting period after the employer tests the labor market. The 30-day period begins after the last advertisement expires if there are no qualified applicants that have applied for the opening.
The Department of Labor either approves, denies or audits (requests additional information and evidence) the application. Keep in mind, the application must be submitted by the employer, and the foreign national is not allowed to submit an application on behalf of the employer. Substantial evidence that the employer has tested the U.S. labor market is required, in addition to the PWD and other essential information.
What To Expect After Your Employer Files Form 9089
The first thing to do after approval of Form 9089 is to file an I-140 petition with the United States Citizenship and Immigration Services (USCIS). This gives the individual the ability to work in the United States on a permanent basis, along with granting them various other rights that they may not have had while on a temporary visa. Also, if the foreign national is approved, then they can apply for adjustment of status if it is necessary to do so. They may also need to file additional applications to begin the process of having their immediate family members join them in the United States.
Speak With The Immigration Attorneys At Pride Immigration
Here at Pride Immigration, our attorneys understand how stressful and time-consuming the PERM process can be for both the employer and the foreign national. If you have additional questions or need assistance with the PERM application process, then reach out to our immigration team today. We enjoy helping foreign nationals through the pathway to citizenship through the permanent labor certification process.
Beeraj Patel, Esq.
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