Many employers seeking to hire foreign nationals to work permanently in the U.S. must undertake the permanent labor certification process with the U.S. Department of Labor. The purpose of permanent labor certification is to test the U.S. labor market for the availability of U.S. workers. The current process, PERM (Program Electronic Review Management), was implemented on March 28, 2005. Prior to PERM, the Department of Labor permitted employers to use either the “traditional recruitment” (TR) process or an expedited process called “Reduction in Recruitment” (RIR). The TR and RIR processes are still in place for applications filed pre-PERM where the employer has not opted to re-file under PERM.
As a general rule, employers hiring foreign nationals in the employment-based second (EB-2) and employment-based third preference (EB-3) categories are required to file a labor certification application with the Department of Labor. Exceptions to the labor certification requirement are available for foreign nationals who qualify for “national interest waivers” or classification as workers of “exceptional ability.”
The basic criteria for foreign labor certification (under PERM, TR and RIR) are as follows:
Simply put, the labor certification process requires the employer to recruit for the foreign national’s position. Unlike recruiting in the real world, the PERM recruiting is not designed to find the best and most qualified candidate for the position. The objective is to determine whether a minimally qualified U.S. worker is available and willing to fill the position being offered to the foreign national. In other words, the fact that the foreign national may be the most qualified candidate for the position is not relevant. If a minimally qualified U.S. worker is willing to accept the position and there are no lawful reasons to reject the U.S. worker, the labor certification will not succeed unless the employer has multiple openings for the same position.
In order for a labor certification application to merit approval from the Department of Labor, the employer must offer full-time employment to the foreign national and it must have bona fide job opening available to U.S. workers. Further, the employer cannot tailor its job requirements to match the foreign worker’s qualifications. Unless it can establish a business necessity, the employer’s requirements for the position cannot be unduly restrictive – its job requirements must adhere to what is customarily required for the occupation in the U.S.
For instance, if an employer is seeking to hire a foreign national as a Software Engineer, absent unusual circumstances, it would be unduly restrictive for the employer to require a Ph.D. in Mathematics and 10 years of experience in an obscure programming language. It would typically not be considered unduly restrictive for the employer to require a bachelor’s degree in a computer-related field, 2 years of experience in software engineering, and knowledge in certain IT tools and technologies which are essential to performing the job.
Before filing a labor certification application, the employer must complete a series of pre-filing requirements. The employer must request and obtain a prevailing wage determination from the Department of Labor. The employer is required to pay the foreign national at least the prevailing wage by the time the foreign national becomes a lawful permanent resident.
While the process of obtaining a prevailing wage determination may seem somewhat routine, employers can encounter significant hurdles during this stage. The employer must submit a written request to the Department of Labor which complies with various different requirements under PERM. One mistake may result in a denial of the employer’s permanent labor certification application. Moreover, the Department of Labor may determine that the prevailing wage for the position is a much higher wage than the employer is willing to pay the foreign national. In this case, the employer may need to spend a significant amount of time to redress this issue.
Once an employer has a prevailing wage determination, it can begin recruitment. In advertising for the position, employers must: (1) place two consecutive Sunday ads in the newspaper of general circulation in the area of employment; (2) post a job order with the SWA for at least 30 days; and (3) post a notice of the job opening at the work location. In addition to fulfilling the mandatory advertising requirements, employers must also complete three of the following other permissible forms of recruitment:
All advertising must take place between 30 and 180 days prior to filing the PERM application. The employer is required to review resumes submitted by U.S. workers and prepare a recruitment report. If a U.S. worker qualifies for the position and is willing to accept an offer of employment, the PERM process must be put on hold. The employer can re-recruit for the position six months later.
If the recruitment is successful, the employer may file the labor certification application with the Department of Labor. If the Department of Labor decides to conduct an audit, it may request various different types of evidence from the employer such as the prevailing wage determinations, proof of advertisements, copies of resumes that were submitted, the employer’s reasons for rejecting applications, and proof of business necessity if the requirements for the offered position exceed what is customarily required for the position.
Once the labor certification application has been approved, the employer may file a petition (I-140 petition) with USCIS to classify the foreign national as an immigrant worker. The petition must be filed within 180 calendar days of the date the labor certification was granted by the Department of Labor. The Department of Labor may revoke a labor certification at any time for fraud, misrepresentation, obvious errors or other reasons related to the labor certification process.