Harvesting exceptional foreign talent is an excellent way of gaining a competitive edge in any industry. Employers who want to hire foreign talent need to acquire a PERM labor certification before they can legally hire foreign workers, however.
The U.S. Department of Labor (DoL) is responsible for managing the admittance of foreign workers into the U.S. labor market. They ensure the hiring of foreign workers does not have a negative impact on wages, conditions and opportunities for U.S. workers.
So, what do employers need to know about the PERM labor certification?
PERM Labor Certification Overview
The Program Electronic Review Management (PERM) labor certification is required by all employers who want to hire a foreign worker on an immigrant visa. Obtaining this certification is a prerequisite to beginning the process of helping a foreign worker obtain an employment-based visa.
Employers must submit a completed ETA Form 9089 to the DoL to begin the process of obtaining the PERM labor certification.
If the certification is approved, the DoL certifies to the United States Citizenship and Immigration Services (USCIS) that there are insufficient U.S. workers willing, qualified and able to do the job.
However, U.S. employers must only offer jobs to their foreign workers at the prevailing wage, to avoid undercutting the domestic labor market.
PERM Labor Certification Process
The PERM Labor Certification is only required for certain categories of foreign workers. The categories requiring certification are EB-2 and EB-3. With regard to EB-2 workers, a certification is not required if a National Interest Waiver has been obtained.
The recruitment process can take as little as 60 days to complete. Preparing the minimum requirements, however, and obtaining the necessary documentation for proof of the prevailing wage can take months. Employers should plan for the whole process to take four to six months.
Outlined below are the three major steps to the PERM labor certification process:
U.S. Labor Market Test
The employer must complete the U.S. Labor Market Test before they can receive the PERM labor certification.
This test is to determine whether there are any willing, qualified and available U.S. workers who could fill the position. The employer must advertise the position for at least 30 days, including in at least one Sunday newspaper listing if this is available in the employer’s local area.
Employers must submit evidence that they have advertised the position. There is no official listing of what is considered acceptable by the DoL, so anything counts.
Furthermore, the employer must provide the prevailing salary based on the business’s location and industry averages for that position. Evidence of this should be submitted as part of the application.
File An I-140 Immigrant Worker Petition With The USCIS
Once the PERM application has been approved by the DoL, the employer is able to file an I-140 Immigrant Worker Petition. Employers are advised to submit this immediately, as the deadline is six months from the date of approval.
The employer must show they are able to pay the prevailing wage offered and the foreign worker possesses the necessary qualifications, skills and experience to carry out the responsibilities of their job.
In practice, the employer must prepare balance sheets, profit and loss statements and may even require the personal financial information of the business owners. An immigration attorney must be recruited to help the employer determine which documents are required of them.
The processing time of the I-140 Immigrant Worker Petition is four to six months, according to the USCIS. Premium processing can be requested for a fee of $1,225, and the application will be processed within 15 calendar days.
The I-140 petition can be paid for by either the employer or the employee, whereas the PERM labor certification fees must be shouldered by the employer.
Adjustment Of Status
The final step in the process is the adjustment of status so the foreign worker can become a permanent resident in the U.S. The immediate dependents of the foreign national may also be included as part of the worker’s application.
In most cases, the applicant will already be in the U.S., which makes the process much easier. Foreign nationals in the U.S. may file the form I-485 Application to Adjust Status.
Foreign nationals outside the U.S. must file a DS-260 Immigrant Visa Application with their nearest U.S. consulate. This will also require an interview to be carried out in the applicant’s home country.
The average processing time for an I-485 application is six months, whereas DS-260 can take up to nine months.
Every case receives a priority date based on the applicant’s nationality. If the priority date is current, the I-485 application must be filed together with the I-140 petition. If there is a backlog and the priority date is not yet due, it can take months or years before this final step in the permanent residency process can be filed.
Each I-485 application costs $1,070. Applications for children under the age of 14 are charged at $635.
Reach Out To An Experienced Immigration Attorney
Obtaining a PERM labor certification and becoming a permanent resident worker in the U.S. is complex. Although the DoL and USCIS provide a lot of helpful information, it is strongly recommended an experienced immigration attorney is hired to increase the chances of approval.
Contact Pride Immigration and gain access to a team of attorneys with years of experience in the business.
Beeraj Patel, Esq.
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