General Overview of Employment-Based Immigration That Requires Labor Certification
For an employer to obtain an immigrant visa for a current or prospective employee, United States law requires that the employer (sponsor) apply for a certification from the U.S. Department of Labor (“DOL”) that there are no U.S. workers qualified to fill the foreign national’s position and that the employer will pay at least the prevailing wage for the position, as determined by the DOL.
The labor certification (PERM) is the first in a three-step process to becoming a legal permanent resident that involves both the U.S. Department of Labor (DOL) and USCIS.
Step 1: PERM
The law requires that the employer file a labor certification application on the employee’s behalf with the DOL. That application must satisfy the DOL that there are no willing, able, and minimally qualified U.S. workers available for the position in which the foreign national is being sponsored. This is accomplished by conducting a test of the U.S. labor market
PERM is a formally regulated procedure by which employers conduct this U.S. labor market test.
Kuck Baxter works closely with the employee and the employer throughout the PERM process. This includes an initial conference call with our team and all parties to review all elements of the application. Our team will work with the employer to establish the critical details of the job offer, including the job title, job duties, minimum education and experience requirements, job location and other elements. We will also review the employee’s credentials including academic degrees, certifications and all experience gained through employment. Upon approval by the employer we will submit a request with the US DOL for a Prevailing Wage Determination (PWD). This PWD will establish the minimum required wage for the position offered. US DOL is currently taking over seven months to process PWD requests. While the PWD is pending, Kuck Baxter will ensure that the employer has set up all required online accounts with both the state workforce agency and the US DOL.
Once the PWD is established and approved by the employer, the recruitment phase of the PERM begins. By law, the foreign national is not permitted to participate in this part of the process. DOL requires the employer to advertise the position in very specific mediums and each advertisement must follow stringent timelines and contain specific language. The attorneys at Kuck Baxter will guide the employer through this process, including the placement of advertisements. It is important to stress that per US DOL regulations, the employer must cover the cost of all recruitment conducted in connection with PERM.
As noted, the company will be required to conduct a recruitment process. The company is required to comply with the following recruitment processes, which can all be done simultaneously:
- In-house notice of posting for 10 consecutive business days
- Job Order with the SWA (State Department of Labor) for at least 30 days
- 2 Sunday advertisements in a major local newspaper
- Posting on all in-house media (company’s intranet, etc.) normally used to recruit for this type of position; and
- If this is a professional occupation or one that requires a minimum of a bachelor’s degree, 3 additional advertisements selected from the following list:
- Employer’s external web site
- Other job search web site (such as the newspaper’s web site, Monster.com, Hotjobs.com, Jobvertise.com, etc.)
- Job fair
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program with identifiable incentives
- Notice at campus placement (for positions requiring only a degree)
- Local and ethnic newspapers (for specific jobs only)
- Radio or TV ads
Once the series of advertisements has run, we must wait thirty days (the “recruitment period”) before the PERM application and recruitment results can be submitted to the DOL, where the decision on the labor certification is made. The employer is required to keep documentation of the recruitment results and a copy of the certified Labor Certification at the work location for a period of at least five years.
Applicants responding to the advertisement will be directed to send their resumes directly to the employer. Kuck Baxter will provide the employer with template review sheets as well as responses letters to assist them in this process. Any qualified, available U.S. worker who responds to the advertisement must be rejected only for acceptable, job related reasons. It is not enough that the foreign national is the most qualified applicant; if any U.S. worker with minimum qualifications applies for the position, failure to offer the position to that U.S. worker will result in denial of the labor certification application. Often, many applicants will not have the minimum qualifications and may be rejected without an interview. The employer must submit all the resumes to the DOL and keep detailed written records to document that the applicants did not have the minimum requirements. We assist the employer in these review procedures because DOL has a rigid practice as to format.
The employer may reject a U.S. worker based on his or her resume only if it clearly does not meet the minimum qualifications set forth in the job description in the ETA form. Therefore, if the resume is inadequate for that purpose, the employer must occasionally interview applicants. The employer must document the reasons why the U.S. worker does not meet the minimum requirements, as well as every contact made to/from the U.S. worker.
While it is extremely important to ensure that the minimum requirements are reflected in this application, it is at the same time important to remember that the company must be able to demonstrate the “business necessity” of its requirements for the position. To establish the business necessity of a particular job requirement, the company must demonstrate that the job requirement is essential to perform the required job duties in a reasonable manner. It is not sufficient to show that the requirements merely enhance the efficiency and quality of the company’s work. Therefore, we should endeavor not to include any requirement which the DOL may regard as excessive, which we will have difficulty justifying, unless you are convinced that the absence of that requirement would result in an applicant’s being deemed to qualify when, he or she could not perform the required duties.
Generally, the DOL regulations prohibit the company from requiring that a U.S. applicant have any experience or qualifications which the prospective employee did not have at the time he/she accepted the job. The reason is that if company hired the individual and trained him/her to function at the current level, the company could also hire a U.S. worker and provide similar opportunities.
If a qualified U.S. worker accepts the position as offered, the PERM process must stop. The employer can restart the process only after a six-month waiting period.
If there are no minimally qualified U.S. workers available for the position, the PERM application can be filed with the DOL. Kuck Baxter will finalize the PERM application for review by all parties before submission.
The labor certification will be filed electronically after all recruitment has ended. The anticipated processing time frame for approval is approximately 8 months. After DOL reviews the completed application, the employer and/or the attorney will receive a decision. If an application is complete and not selected for an audit, the application will be certified and returned to the employer for signature. If the job is considered unusual; for example, requiring an odd combination of skills, the employer may receive a denial. If an application is selected for audit, the employer will be notified and required to submit documentation specified in the regulations to verify the information stated in or attested to on the application. Upon timely receipt of an employer’s audit documentation, it will be reviewed by the DOL. If the employer does not submit a timely response to the audit letter, the application will be denied.
If the response is complete and consistent with the employer’s statements and attestations contained in the application, and not deficient in any material respect, the application will be certified and the employer will be notified. If the audit documentation is incomplete, is inconsistent with the employer’s statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial will be issued to the employer. Only the Certifying Officer will have the authority to request additional information before making a final determination. Kuck Baxter we will assist the employer in the preparation of the response letter and supporting documentation and it submission to the Department of Labor.
Step 2: Immigrant Visa Petition (I-140)
Immediately after approval of the labor certification application we will prepare and submit an Immigrant Visa Petition with USCIS on behalf of the foreign national employee. All fees associated with the Immigrant Visa Petition and Green Card Application may be paid by the employer or the employee. USCIS will process an I-140 petition in two weeks if premium processed. Without premium processing, the I-140 typically processes in 3-6 months.
Step 3: Application for Permanent Residence (I-485) or Consular Processing
If the employee is holding current status in the U.S., upon notification that the foreign national’s priority date is current, we will prepare and submit the Applications for Permanent Residence (“green card applications”) for the foreign national and his/her family. Employment and travel privileges are available to the foreign national employee and each family member during the pendency of the green card applications.
Should the employee be outside the U.S., the approved I-140 petition will be sent to the National Visa Center for consular processing. The attorneys at Kuck Baxter will prepare and submit the applications for permanent residence for the foreign national and his/her family through the National Visa Center. This process will allow the foreign national and his/her family to apply for permanent residence at the U.S. consulate in their country of residence.
If you would like further information about specific case scenarios or situations, please call our office or email us at email@example.com to speak to one of experienced immigration attorneys.
LABOR CERTIFICATION CHART
No Qualified Applicants for the Position
Federal Department of Labor
IMMIGRANT VISA PETITION
Citizenship & Immigration Service— USCIS Service Center
Confirmation that Employee is Qualified for the Position and Employer is Able to Pay Offered Salary
3 to 8 months processing time (15 days with Premium Processing
ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE
Citizenship & Immigration Service— USCIS Service Center
Verify that you are Eligible (not excludable) to Immigrate to the United States
Medical Exams, Fingerprint, Photographs and Lots of Forms!
6 to 24 months processing time
SUPPORT DOCUMENTATION FOR LABOR CERTIFICATION APPLICATION
- CORPORATE (Prospective U.S. employer):
- Certificate and Articles of Incorporation;
- Employer’s Federal Tax Identification Number;
- Current annual report and/or audited financial statement, or federal corporate income tax return;
- Lease or deed for business premises;
- Any available promotional pamphlets and brochures which describe the company and its various products, service, etc;
- A complete job description for the individual’s proposed position — including a list of all job duties; title of immediate supervisor, number and title of persons supervised, and annual salary and benefits information; and
- Full name and title of contact person at company who will coordinate paperwork and the full name and title of the company’s authorized signatory for documents.
- INDIVIDUAL (Foreign national)
- Completed General Immigration Questionnaire and Completed Labor Certification Questionnaire;
- Photocopies of individual’s passport and those of his immediate family members who will accompany him to the United States;
- Individual’s resume, curriculum vitae, etc.;
- Photocopy of individual’s university or trade school diplomas and certificates, and course transcripts, if available;
- Photocopy of individual’s professional licenses, professional society membership certificates or cards, etc; and
- Any available reference letters verifying the individual’s prior work history.
If possible, English translations should be provided for any foreign language documents.
If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.