Immigration Lawyer Blog
In this video we breakdown the labor certification process also known as “PERM.”
Overview:
What is labor certification? Labor certification is required because the government wants to make sure that U.S. workers are not adversely affected by the employment of the foreign national, in this case the beneficiary of the application.
Step one: Filing the labor certification application
The first step in filing a labor certification application is to file a prevailing wage request with the state workforce agency. This request will inform the employer about the wage that must be paid to the foreign national for the work to be performed. Knowledge of the prevailing wage is important because it will affect advertising for the position, the prevailing wage information to be included on the immigration forms, etc. Any mistakes that occur in this step of the process can affect the likelihood of success. It takes several months to receive the certified prevailing wage determination from the labor department. Once the certification is received, the recruitment process can begin.
Tip: Accuracy is key, avoid mistakes in this step of the process
Step two: Begin the recruitment process
The government requires advertisement of the position sought by the foreign national so that American workers have a fair chance to apply for the position. There are certain types of advertisements that are required to fulfil this requirement: (1) an advertisement must be placed with the state workforce agency on their website (2) two Sunday advertisements must be placed in a major newspaper circulation (3) Internet advertisement and so on. All advertising for the position must be done at the same time, because the labor certification is only valid for a period of 180 days. If the advertisements are outside of this period, they will no longer be useful, and the applicant will no longer be able to file the PERM application. Once the advertisements have been placed, a cooling period of 30 days is required to give U.S. workers some time to respond to the advertisements.
Tip: Group advertisements as close to one another as possible within the 180-day validity period of the labor certification
Step three: Filing the ETA Form 9089 (PERM)
The next step is to file the PERM application electronically. During this step the employer must open an account with the labor department. The PERM application takes several months to be processed. The PERM application may either be approved—certified via email—denied or referred to an audit. An audit is not a bad thing per se, the only drawback is that obtaining the certification will take longer in the case of an audit. If the PERM application is approved, then the employer can proceed with filing the I-140 Petition for Immigrant Worker. If the application is denied, there is a way to appeal the decision. Alternatively, the application may be re-filed depending on the reason for the denial.
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