Many small businesses in the United States have job openings for which there are no qualified or willing U.S. workers. However, businesses need to fill these positions in order to grow and flourish. Fortunately, the U.S. immigration system provides a solution: sponsoring foreign workers.
The first step small businesses need to take to sponsor foreign workers is obtaining an approved PERM labor certification from the Department of Labor (DOL). PERM, an acronym for Program Electronic Review Management, is the system employers use to apply for permanent labor certification.
What Is a PERM Labor Certification?
A PERM labor certification is official approval from the DOL confirming two things:
- There are no willing, qualified, and available U.S. workers for the job the employer is trying to fill.
- Employing the foreign worker will not have an adverse effect on the pay or working conditions of U.S. workers in similar positions.
Once a small business has obtained an approved labor certification, it can continue the green card sponsorship process for the foreign worker by filing a Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS).
The PERM Labor Certification Process for Small Businesses
Obtaining labor certification can be an arduous process for small business owners. It involves strict documentation requirements and deadlines. Here are the important steps:
Prepare a Detailed Job Description
Small business owners must create a job description that clearly outlines the duties, minimum requirements, and qualifications of the position they want to fill. This step is important because the sponsored foreign worker must meet these qualifications, and the employer cannot obtain labor certification approval if any minimally qualified U.S. worker applies for the job.
On one hand, the requirements cannot be too loose, or else a large pool of U.S. workers may qualify. On the other hand, being too strict runs the risk of having the
application denied because the employer is manipulating the requirements to fit the foreign worker. It is a delicate balance.
Obtain a Prevailing Wage Determination
The employer must obtain a prevailing wage determination for the particular role in the geographic area where the job will be performed. This confirms the wage that the DOL has determined is the standard for U.S. workers in similar positions in that area. Employers must pay sponsored foreign workers at least the prevailing wage.
Perform Recruitment and Advertising
Employers must take good-faith steps to test the labor market and recruit U.S. workers before filing for labor certification. This attempt includes advertising the job opportunity in various media for at least 30 days, including:
- The State Workforce Agency job board
- Local newspapers, Sundays and Wednesdays
- Local newspapers, Sundays and Wednesdays
- Job search websites
Detailed documentation of all recruitment sources, content, dates, and results must be maintained.
File ETA Form 9089
This form is the actual Application for Permanent Employment Certification that must be filed electronically through the PERM online portal. It contains information about the job requirements, the employer’s recruitment process, and the sponsored foreign worker.
Small businesses must take special care to provide accurate details and maintain compliance with all documentation and filing requirements when completing ETA Form 9089. Simple mistakes can lead to audits or denials, which ultimately delay the process and cost the employer time and money.
Common PERM Labor Certification Challenges for Small Businesses
The PERM labor certification process poses particular challenges for small business owners:
- Costs: advertising and recruitment can be expensive, particularly for small companies with lower budgets. This cost includes staff time needed to carry out the process.
- Complex documentation: small businesses often lack specialized HR and legal personnel familiar with PERM compliance. Extensive paperwork and precise filing instructions make errors likely without expertise.
- Audit risk: small companies may face greater scrutiny of their ability to pay the offered wage and prove there are no qualified U.S. applicants. Any DOL audit triggers delays, additional legal costs, and further requests for evidence.
For these reasons, it is highly advisable for small business owners to retain experienced immigration legal counsel when navigating PERM labor certification.
Retain an Expert PERM Immigration Attorney from Pride Immigration to Improve Your Approval Chances
The PERM labor certification process is mandatory yet complicated for small businesses seeking to hire foreign talent. Given the legal complexities and high standard of compliance required, working with qualified immigration counsel is paramount for small business owners.
Employers can manage the complexities of labor certification without costly errors or delays by retaining experienced PERM immigration lawyers, such as those at Pride Immigration. With a thorough understanding of PERM regulations and a meticulous approach to documentation, Pride Immigration helps small businesses increase their odds of getting their cases approved, even when facing DOL audits or other challenges.
If your small business needs foreign talent to sustain innovation and growth, trust Pride Immigration to provide exceptional legal service, ensuring your PERM case is handled smoothly from start to finish. Contact us today at (703) 594-4040 or online to learn how our top immigration lawyers can help your small business.
Beeraj Patel, Esq.
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