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What is Labor Certification

Posted by Kripa Upadhyay | Sep 20, 2016

Until 2005, the labor certification system in the United States was fairly slow and inefficient. For those seeking a way to immigrate the US for work, this long wait only added more stress to a process that was already extensive and stressful. Fortunately, PERM was introduced as a way to streamline the labor certification process so that both working immigrants and employers seeking to hire foreign workers could go through the visa process faster.

If you need guidance or legal counsel in attaining your labor certification in the US, there's a law firm that specializes in just that. Located in Seattle, WA, the attorneys at Orbit Law, PLLC specialize in immigration and Nationality law. Because it is our core focus, we are dedicated to continuing our education and understanding of immigration law in the US. We frequently attend and speak at immigration-related seminars to keep our finger on the pulse of these ever changing laws. Now, keep reading to learn about PERM, and how it works within the labor certification process.

What is Labor Certification

Labor certification is an employment-based opportunity for obtaining citizenship. This process is done by US employers looking to hire an immigrant worker. There are numerous conditions attached to this type of green card, but the chief underlying condition is that the employer can't find qualified US workers to fill the needed position. Once the application is approved by the United States Department of Labor, the employer can then work towards attaining permanent residency for said foreign worker. The labor certification process is complicated and can take a lot of time. Luckily, in the last decade, PERM was launched as a way to streamline the labor certification process for employers.

How Does PERM Work?

Program Electronic Review Management (PERM) is an electronic labor certification system designed to expedite the Labor Certification application process. With PERM, it only takes around 60 days to process the applications. This is a vast improvement from the old system, which took months of extensive interviewing and persuading before an employer was allowed to hire a foreign worker. While PERM has helped to expedite the labor certification process, the system as a whole is still very complicated, and would be best done with a knowledgeable attorney by your side.

PERM Timeline

From the start of the case to filing the PERM LC application, form ETA 9089, the PERM process usually takes four to six months. As explained in greater detail below, employers must complete certain detailed steps pertaining to efforts to recruit U.S. workers as part of the PERM process. These highly detailed requirements must completely be met before the case can be filed with the DOL.

Minimum Requirements and Duties for Offered Position

The starting point in the PERM LC process is establishing the duties and requirements for the position that forms the basis of the PERM case. There are specific regulations governing the content of the job description, as well as the job requirements or qualifications. These regulations must be carefully adhered to, as cases can be denied for issues that, to the average employer, may seem to be minor technicalities.

The sponsoring employer must set forth clearly defined job duties and educational and/or experience requirements needed to qualify for the position. The requirements set by the employer for the position must meet the DOL's “actual minimum requirements” rule. This means that the requested education and/or experience must reflect the employer's absolute minimum qualifications for the job to be performed in a competent (not superior) way.

An employer may never have considered these matters in the detail or in the same manner as the DOL prior to commencing a PERM case. In such a situation, it could take a number of days or even longer to finalize this initial part of a case. There is a high level of employer participation at this stage. Thus, the length of time required to complete this portion of a case depends in part upon the employer's availability.

A separate aspect of the analysis of the job definition is the determination of whether the sponsored employee will be able to document that s/he meets the employer's education and/or experience requirements. This can cause delays while efforts are made to obtain sufficiently detailed experience letters from prior employers, educational documents, and evaluations of foreign educational credentials. Benefits of Obtaining Prevailing Wage Before Recruitment

In order to file the PERM application, it is necessary to obtain a prevailing wage determination (PWD) from the DOL. This establishes the appropriate minimum wage level required for the position. Wage determinations take approximately six weeks, as of this writing. While the PWD can be processed during the recruiting period, it is often advisable to obtain the determination prior to starting recruitment.

There are a number of reasons it is often beneficial for an employer to obtain the PWD before the recruitment process for the position begins. One reason is that there is a level of unpredictability in the DOL PWD process. If a wage is used that the employer believes will be the PWD, but the actual PWD issued weeks or months later turns out to be higher, the employer may be forced to restart the entire recruitment process from the beginning.

Timing issues are another reason many immigration practitioners favor obtaining the PWD before the employer starts recruitment. Recruitment efforts are only valid for a limited time, and if recruitment starts before the PWD is obtained, the PERM LC must be filed during the assigned validity period of the PWD. Thus, if recruitment cannot be completed before the PWD expires, it is often necessary to start the entire case over again.

The case can sometimes be salvaged if there is enough time to obtain a new PWD before the recruitment efforts expire. However, even when a new PWD is issued in time, the wage may be updated to a higher rate. This, too, may necessitate starting the recruitment anew. On the other hand, if the PWD is issued prior to any recruitment steps are taken; the validity of the wage determination is prolonged. Therefore, obtaining the prevailing wage before recruitment begins can avoid these potential complications.

Recruitment Format and Requirements

The DOL has exacting regulations as to the form and content of the recruiting efforts required of the sponsoring employer. The employer is required to use newspaper ads, a posting in the state labor department's job bank, and, for professional positions, three additional allowed forms of recruitment. The regulations address not only the types of recruitment, but also the content of the advertisements.

Various companies and agencies generally must be utilized during the advertising process, which sometimes leads to errors. Therefore, this process must be closely monitored. For example, the state labor job posting is required to run for 30 full days. Sometimes, however, the state agency will cut short the posting without authorization. If this occurs and is not corrected, the DOL may deny the case. Other forms of advertising may not have to run for such a long period of time, but they are subject to issues such as human or machine error, which could also render the recruitment campaign unacceptable to the DOL.

During recruitment, the employer must promptly and appropriately respond to any resumes or applications submitted by interested candidates for the proffered position. Otherwise, the DOL will not consider the recruiting efforts to be valid and acceptable. This almost always leads the employer to have numerous questions for the attorney as to the appropriate response and screening of potentially qualified applicants. If an employer improperly handles job applications or interviews, it can doom the process. 30-Day “Quiet” or “Hold” Period

Some people like to call the period between finishing most of the recruitment and filing the application a quiet or hold period. In reality, it is part of the required recruitment period. After the 30-day job order and most of the other recruiting is complete, the PERM LC filing still must wait for an additional 30 days. This is so that the employer can continue to receive and consider job applications in response to the prior recruiting efforts. In general, if a PERM LC is filed before the 30-day mark, it will be denied. Employer / Employee Sign Form Under Penalty of Perjury

The attorney may be able to prepare the extensive ETA 9089 form during the recruitment period. However, the form cannot be finalized until after the recruitment process is completed. Once the form is finalized, it must be approved by both the employer and employee, who will be signing their respective portions of the form under penalty of perjury.

Review PERM Carefully Before Signing and Filing

Employers and employees should take the time to carefully review the entire form and address any issues or discrepancies prior to filing. A pending form cannot be corrected.

The only option for fixing such errors is withdrawing and re-filing, and this is only possible if the recruiting and wage determination are still valid. Qualified Candidate/s Applying Terminates PERM

Of course, if the recruitment locates qualified, willing, able, and available U.S. worker applicants to fill the offered position/s, the PERM application must end at that point, in most cases. If the employer wishes to do so, it may be possible to try again later, which would require starting the entire PERM process anew.

Orbit Law, Your Seattle Immigration Attorneys

Immigration law is too complicated to pursue on your own, so you can rest assured knowing that with our knowledge and experience, we can help you navigate the many legal issues that come with immigration and labor certification. You can contact our Seattle immigration lawyers here, or give us a call at 206-623-3352.

About the Author

Kripa Upadhyay

Kripa Upadhyay Founder/Attorney [email protected] EDUCATION Seattle University School of Law, Seattle, WA, Juris Doctor (JD)  May 2007 ADMISSIONS Washington State Bar Association: Admitted May 2008 U.S District Court for the Eastern District of Washington: Admitted 2009 U.S...