Business Immigration in Maryland: Understanding PERM Labor Certification

Sometimes U.S. companies have positions where finding qualified applicants is difficult, but to grow their business, these positions must be filled. The best and often advantageous way is through hiring foreign workers qualified for the job. Fortunately, the U.S. immigration system offers a solution, and part of this solution is the PERM process. PERM is the first step these companies must take before certain foreign nationals can obtain an employment-based immigrant visa. Challenges, misunderstandings, and inadvertent errors, however, can delay the process. As a business owner, you already know that more delays cost you in terms of profit and pretty much everything else.

At Zenith Law Firm, our business immigration lawyer based in Maryland has a thorough working understanding of the PERM process and the entire immigration system. We help business clients get the employees they need to develop and grow their businesses. Contact us today at (240) 652-2557 to schedule a Consultation.

The Labor Certification PERM Process in the United States

If a U.S. employer wants to sponsor a foreign national to work for them, certain employment-based visas require an approved labor certification from the Department of Labor (DOL). 

An approved labor certification confirms that:

1. There are insufficient qualified and willing U.S. workers to fill the position; and
2. Hiring a foreign worker will not negatively impact the wages or working conditions of U.S. workers in similar roles.

Labor certification is the first step in sponsoring a foreign worker—it does not authorize the foreign worker to live and work in the United States. If a labor certification is approved, the employer needs to apply for an immigrant visa before a foreign worker can apply for a green card. 

The labor certification process is known as PERM, which stands for Program Electronic Review Management. It is the online system employers use to apply for permanent labor certification. The whole process can take up to 18 months, and much of that time is spent ensuring no qualified workers are available in the United States.

The PERM / Labor Certification Process

To apply for labor certification, an employer must:

1. Prepare a job description. The job description outlines the duties and minimum requirements of the role. This must be done carefully, as not only does the foreign worker need to fulfill these requirements, but an employer cannot obtain an approved labor certification if a U.S. worker who meets the requirements applies for the role. On the one hand, you want strict minimum requirements for the position because you do not want loose guidelines that would qualify too large a pool of applicants. On the other hand, you do not want the description too strict, or else the DOL might determine you are too restrictive purposefully so that you can sponsor the foreign worker rather than hire a U.S. worker. It is a delicate balance to be reached.
2. Obtain a prevailing wage determination from the DOL. This determination confirms the wage for the specific role and location. At a minimum, employers must pay the foreign worker the prevailing wage. 
3. Take “good faith” steps to recruit a U.S. worker for the role. To do this, an employer must undertake a series of recruitment activities including advertising the position via the relevant state workforce agency and newspaper advertisements. 
4. File a Form ETA 9089. This form, which is the Application for Permanent Employment Certification with the DOL, details the minimum requirements of the position, recruitment process, and foreign worker's details, among other information. 

This process is onerous on employers and involves strict timeframes that must be closely followed. 

Outcome of the PERM process

The DOL can approve or deny the application or audit it by requesting further information or evidence. 

If a labor certification is approved, the employer then files a Form I-140, Immigrant Petition for Alien Workers with U.S. Citizenship and Immigration Services (USCIS) to request a visa for the foreign worker. Permanent labor certifications expire after 180 days, so an employer must apply to USCIS within this time. 

Once USCIS approves the petition, the employee can apply for a green card.