Permanent Labor Certification (LC) is the first step in the process most foreign nationals go through when obtaining a green card through a U.S. employer. In order to proceed with the application, they need to first obtain an approved LC from the U.S. Department of Labor (DOL), showing DOL’s finding that the position held (or to be held) by the foreign national is in what's known as a "shortage occupation" -- that is, an occupation with insufficient U.S. workers to fill the available spots. (U.S. workers include a U.S. citizen or national, green card holder, asylee or refugee.)
DOL has developed a process for obtaining an approved LC called the Program Electronic Review Management (PERM) system, in which the employer must submit Form ETA 9089 (Application for Permanent Employment Certification). Before filing the application, the employer is required to complete a number of steps, as described below.
The focus of this article is to list the steps for preparing and filing a LC (or PERM) for people intending to obtain a green card. This article does not discuss the LC process used for obtaining a temporary visa such as the H-2A or H-2B. More details concerning this process can be found at: www.foreignlaborcert.doleta.gov.
In addition, there are situations in which this process can be bypassed. These include cases where the positions are of a type that DOL has already determined are shortage occupations (Schedule A occupations - nurses, physical therapists, and foreign nationals with exceptional ability in the sciences, arts and performing Arts), and cases of sheepherders who have been legally employed in the U.S. as a sheepherder in a temporary status for at least 33 of the preceding 36 months. Also, the LC process is different for professional athletes.
Step One: Preparation
The first step requires the employer to assess and describe the position. In particular, the company must create a job description and describe the job's minimum requirements. This usually involves listing the specific degree requirements, experience requirements, and any special skills needed for the position. A particular challenge for employers is learning to stop thinking in terms of what skills they want an employee to hold, but rather meet DOL’s requirement that they think in terms of what is minimally necessary to perform the work in the position.
The second part of preparing to apply is for the employer to decide the recruitment steps (described below). Third, the employer must confirm that the foreign national meets the minimum requirements for the position or, if currently employed by the petitioning employer, met them prior to ever being employed by the petitioning employer. There is one exception to this rule: A foreign national can use experience gained with the employer if prior experience was in a position(s) that are substantially dissimilar to the PERM position.
It is important that employers to take the time to prepare here. A bad decision at this initial step could cause delays or eventual denial of the LC.
Step Two: Prevailing Wage Determination
Next, the employer will usually request a Prevailing Wage Determination (PWD) from DOL. This involves submitting the job description, minimum requirements, and special skills to DOL, which then makes a determination as to the prevailing wage for the specific position in the work location. The employer is required to offer a wage that meets or is higher than the prevailing wage listed on the PWD. The processing time for the PWD can vary between a few weeks to a few months or longer. All PWDs will have an expiration date, and the regulations state that the employer must have an unexpired PWD in hand when either beginning recruitment (the next step) or when filing the PERM.
Most employers wait to receive the PWD before moving to recruitment. That's because, once recruitment begins, the PERM must be filed within a short time frame. Meanwhile, it's common for the employer to disagree with DOL's determination on the prevailing wage for the position, and it can take a number of weeks to resolve this dispute. Many employers are surprised to find that they can't convince DOL to change the PWD, and so will have no choice, if they want to hire the foreign national, but to raise their offered wage before they can file the PERM.
Step Three: Recruitment
The next step in the process is for the employer to begin publicly recruiting people for the very job that it eventually may offer the immigrant.
For professional positions (ones that normally requires a bachelor’s degree or higher), DOL requires the employer to post the position, for 30 days, on the job bank operated by the state where the position is located, and to post it in two different Sunday editions of a newspaper of general circulation in the area where the job is located.
If the job requires experience and an advanced degree and a professional journal normally would be used to advertise the job opportunity, the employer may place an ad in a professional journal likely to attract qualified U.S. workers in lieu of one of the Sunday advertisements.
The employer is also required to select three “additional” recruitment steps from the following list of ten:
- job Fair
- employer website
- job search website
- employer referral program
- local or ethnic paper
- on-campus recruiting
- trade or professional organization
- private employment firm
- campus placement office
- radio or TV ads
For foreign-national college or university teachers who have been selected in a competitive recruitment process and were more qualified than any U.S. worker who applied, DOL will permit a university or college to submit documentation of this selection process in lieu of the recruitment process listed above; on condition that the selection was made within 18 months of filing the PERM.
For non-professional positions, the employer needs only to post the position on the job bank and in two different Sunday editions of a newspaper of general circulation in the area where the job is located.
Care must be exercised here. Once recruitment begins, the employer has 180 days to complete the recruitment process (and the following two steps), which must include a 30-day "cooling off” period prior to filing the PERM. During that cooling-off period, no recruitment can be conducted except for one "additional" recruitment step. Failure to file within the 180 days will result in an automatic denial.
Step Four: Notice
The employer is required to give notice to its employees of the PERM application during the recruitment period, but cannot do so during the cooling off period mentioned above. If there is a bargaining representative (i.e. union), details of the position must be given to this representative. If there is no bargaining representative, the employer must post details of the position for ten consecutive business days where the job is located and in any and all in-house media.
An important aspect of the notice is that the offered wage will need to be listed among the details of the position. Therefore, if the employer chooses to begin recruitment before receiving the PWD mentioned above, the employer should resolve any disputes about the PWD as quickly as possible and most certainly with enough time to post the notice before reaching the cooling off period.
Step Five: Assess Applicants’ Qualifications
During the recruitment period and up to filing the PERM, the employer is required to review the qualifications of U.S. workers who apply for the PERM position to see whether any are qualified. If necessary, the employer will need to interview U.S. worker applicants to assess their qualifications. If a layoff occurred six months prior to filing the PERM, the employer must notify and consider all potentially qualified laid-off U.S. workers who held a position that is in the same or related occupation as the PERM position.
Step Six: Filing the PERM
If the employer has not found any qualified U.S. workers for the position, the PERM can be filed with DOL. If the employer finds qualified U.S. workers, it can still file on behalf of the foreign national if the qualified U.S. workers refuse to take the offered position or if there are still positions open after hiring those U.S. workers who are qualified.
Seek Legal Help
Preparing and filing a PERM is a very complex process, and filing on your own is very difficult. Thus, it is highly recommended that you seek the help of an experienced immigration attorney when processing a PERM.
