PERM Labor Certification & Legal Requirements for Businesses Hiring Foreign Nationals
A foreign national can seek legal permanent resident (LPR) status, also known as a green card, in the United States if the Department of Labor (DOL) approves his or her Application for Permanent Employment Certification and the United States Citizenship & Immigration Services (USCIS) subsequently approves the Immigrant Petition for Alien Worker. This document is often referred to as Form I-140, and the employer must file it on behalf of the foreign national.
A labor certification is the most widely used employment-based opportunity for obtaining a green card. The purpose of labor certification is to protect the domestic labor market by ensuring that foreign national workers who are seeking jobs in this country are not taking jobs away from American workers who are equally qualified for the positions. A labor certification requires that the U.S. employer demonstrate two things. First, there must be no minimally qualified U.S. workers for the job, in the geographic area where the job exists, who are willing and able to fill the position. Also, the employer must show that the non-citizen individual’s employment will not “adversely affect” the incomes and working conditions of similarly situated U.S. workers. This means that the employer must agree to pay the employee at least the determined prevailing wage for the position at the time that he or she is granted permanent residence status.
The first step to obtaining a permanent resident status involves using the Program Electronic Review Management System (PERM) process for labor certification. PERM was designed by the U.S. government to reduce processing time for labor certifications from years to a few months. If you meet certain requirements, however, you may be able to bypass the PERM labor certification to obtain permanent residence based on employment.
Under DOL guidelines, an employer is required to place two Sunday advertisements for the vacant position. For professional positions, the employer must take additional recruitment steps. First, the employer must place a 30-day job order with the State Workforce Agency, as well as get a prevailing wage determination from the agency. The employer additionally must internally post the job listing for 10 days. Once these steps are taken, the employer can file a PERM application online, which requires attesting to the fact that, among other things, the previously listed steps have been completed. PERM aims to certify a labor certification within 45 to 60 days. The DOL maintains the authority to examine and audit any application that may seem problematic.
The DOL then examines the labor certification application and ultimately “certifies” it if it finds that the requirements have been met. Once the certification has taken place, the employer can apply to the USCIS for a green card for the foreign employee. After the immigration petition is approved, a person who applied from outside the U.S. will receive permanent residence. If permanent residence is applied for when the individual already is in the U.S., the employee applies for an “adjustment of status” to become a U.S. permanent resident. In general, employment-based adjustment of status cases are not subject to interviews at the local USCIS office.
