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|Immigration and Nationality|
|Permanent Labor Certification
A labor certification is a process whereby an employer tests the labor market to determine whether a United States worker is qualified, willing and able to perform the job the employer wishes to offer a foreign worker. This test of the labor market is required for positions that would fall under the employment based third preference classification (skilled, professional or other workers) and the second preference classification for members of a profession requiring an advanced degree.
Once the labor certification application is approved by the United States Department of Labor (DOL), the employer may then submit an I-140 Immigrant Petition on behalf of the foreign worker. For many foreign workers, the labor certification is the first step on the road to attaining a green card.
On March 28, 2005, the DOL implemented a new labor certification process called PERM. In order to file a labor certification under this new procedure, the following criteria must be met:
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|Process for Filing
Before submitting the PERM application (ETA Form 9089), the employer must engage in prefiling recruitment and obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed are of intended employment. The employer may submit the ETA Form 9089 online, and must retain all supporting documentation (e.g., proof of ad placement, results of recruitment, posting of notice of job opportunity).
If the position involved requires at least a Bachelor’s degree, there are six recruitment steps the employer must take before submitting the ETA Form 9089 with the DOL. All recruitments steps must be completed within 180 days before the filing of the PERM application. Please note that PERM applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders need not follow the recruitment steps outlined below.
There are 3 mandatory steps:
|The employer may select 3 additional steps from the following:|
|For all other occupations not normally requiring a Bachelor’s or higher degree, employers follow a different recruitment process. For these positions, the employer must place a job order with the SWA for a period of 30 days, and place an advertisement on 2 different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation.
Recruitment Report and Record Retention
The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides 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.
The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089.
If you would like to discuss labor certification and develop a strategy for obtaining a green card, please contact us.
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