The vast majority of workers seeking visas to be allowed into the United States are eligible only if they have an offer of permanent employment in the United States and when their prospective employer has proven that there are no domestic workers with minimal qualifications to fulfill the position. Employers prove the need for the foreign worker through a required recruitment period followed by the filing of an Alien Employment Certification, or “labor certification”, application.
Labor certification applications are filed under PERM (Program Electronic Review Management) which has been in place since March 2005. Upon certification of the application by the U.S. Department of Labor (“DOL”), the employer can then file an application with USCIS for a green card for the foreign employee.
Employer Required Showings to Obtain Labor Certification
Not surprisingly, there are stringent requirements for showing that there are not enough domestic workers available to fill a given position. To start, the employer must establish that it has tested the local labor market using a specific recruitment program searching for domestic workers who are qualified and available within the geographic region of where the job will be located. This process must be completed within six months of the filing.
Further, the employer must demonstrate that the job it is proposing to fill with a foreign worker is open and available to domestic workers, conditions placed on the job are reasonable and necessary, and the salary offered meets or is greater than the prevailing wage in the area.
Where an employer has tried to fill the particular position using normal and customary recruitment efforts and has failed to find qualified domestic workers, the employer may be able to avoid the labor certification process altogether, provided the employer can prove their prior efforts.
DOL Standards of Review of the Certification Application
In addition to the affirmative requirements of the labor certification process, the DOL has preemptively established certain requirements to prevent abuse of the labor certification process. Specifically, employers cannot make unreasonable conditions on a position to make it one that can only be filled by a foreign worker unless that condition is essential to performance of the job. Similarly, employers cannot make the requirements of the job specific to the particular experience of a foreign worker. Employers also cannot hire a foreign worker because they are more qualified if the domestic worker who may not meet all of the requirements could get training for the job or can acceptably perform the job given their background. Finally, employers who laid off employees within six months prior to the labor certification application must show that they gave consideration to the domestic workers who were laid off.
Provided these standards are met, the DOL will evaluate the application under two standards designed to promote the employment of lawful, domestic workers over that of foreign workers. First, it looks to whether there are U.S. workers who are willing, able, available, and qualified for the position. Second, it evaluates whether the placement of the foreign worker in the position will have an adverse effect on similarly-situated U.S. workers’ working conditions or wages. These two standards are sometimes applied together or sometimes one standard is applied in lieu of the other. Keep in mind that lawful domestic workers include not only U.S. citizens, but also permanent residents and those granted refugee or asylum status.
DOL Application Processing
The first step in the PERM process is for the employer to advertise the position in three places. First, the employer must place a job order with the State Workforce Agency in the state where the job will be located. Second, the employer must take out two ads for the position in the Sunday newspaper of general circulation serving the geographic area. Third, the employer must advertise the position in three other places, which the employer can choose from a list of ten sources. The SWA will verify that the position’s salary is at the prevailing wage and will then post the job for 30 days.
During this time, the employer must review and evaluate all applications received for the position, and must interview the candidate in situations where it cannot exclude the candidate based on their resume alone. Of course, the employer must also keep detailed records of this recruitment effort to be able to later show that it made a good faith effort to find qualified domestic workers.
Once this process has been completed, including the 30-day run of the ad with the SWA, the employer then files the ETA Form 9089 requesting labor certification. Once it is filed, the application is evaluated by DOL software that has been programmed to automatically deny applications based upon errors in the application that violate the rules. Such errors include, filing the application less than 30 days before the completion of the recruitment period or the recruitment period was outside of the six month period required. The DOL will also contact the employer to confirm that they have offered the position to a foreign worker.
If the application is approved, the employer will then be able to file the I-140 petition for a green card with USCIS. The certification itself does not act as a green card or serve as any form of authorization of the foreign worker or their eligibility to enter the U.S. It merely certifies that the employer has shown that there are no qualified domestic workers available to fill the position.
Assuming the foreign worker is granted a green card to come to the United States and fulfill the position, any changes in the circumstances surrounding the labor certification are evaluated by USCIS. Changes can include change in the job location, termination of the employee, the employer’s name or ownership have changed, or the duties and/or salary of the position have changed in a substantial way.
Your workers may be an ocean away, but help getting them here is right in your backyard with the law firm of Jurado & Farshchian, P.L. Just as you know your business, our attorneys know the labor certification business and stand ready to assist you bridging the ocean between you and the employees that you need. Contact them today to get the process started.