The labor certification process is referred to as the PERM in the United States. In this process, the employer pays the cost for an employee’s immigration. Anyone can apply for this certification, i.e., there are no ‘specific’ jobs that do not qualify for this process. However, the acceptance of your application is dependent on a few factors, which are specified by the Department of Labor (DOL).
The authorities that carry out the PERM process need to be convinced that no US residents are willing to work at the same wage rate as immigrants. This is necessary as the authorities need to be certain that immigrants are not taking jobs from qualified US workers. Alternatively, the US workers are not suffering from minimum wage rates because an immigrant can demand lesser money than the resident.
The PERM is a three-step process in which the employer is a part only in the first two steps. As mentioned above, in these steps, the employers will have to demonstrate to the DOL that no US resident is willing to take up the position offered to the immigrant. The employers also need to attest that they would not be underpaying the immigrant, and they shall be receiving at least the minimum wage that the DOL determines. Several other documents need to be attached while filing for the PERM process. To know about these in detail, you should contact our experienced team of lawyers at U.S. Immigration Law Counsel. Lawyers here have successfully advised several of its clients in procuring these certifications. To help you briefly understand the process, we have summarized the important points in our blog.
What are the steps in the PERM process?
The first step in the PERM process requires three people – an attorney, the employer, and the employee. The employer and the employee need to furnish specific job details that should be disclosed fully to the lawyer. These include, among other things, job title, duties that the employee needs to perform in the job, the employee’s education experience and academic credentials, location of the job, and the number of supervisors the employer has employed to date. We suggest you talk to the attorneys at U.S. Immigration Law Counsel in detail and at the earliest to know more about the other required documents. This will give you sufficient time to arrange them.
After furnishing these documents, your attorneys will prepare a summary listing all this information. This summary shall also be used for advertisements. After it has been prepared, the attorney should get it reviewed by the employer so that they can suggest changes to the draft (if any). If approved by the parties, the attorney shall file for a prevailing wage request to the DOL. It is pertinent that we understand what ‘prevailing wage’ here means. The prevailing wage is determined by the DOL, taking into account several factors. These include the geographical location of the job being offered, the academic qualifications of the employee, and their duties in the role. This rate is determined so that the employers do not pay the immigrant employee lower wages than what they deserve in that field. Please note that if the collective bargaining agreement governs your wage, then the same has to be submitted to the DOL.
After receiving the prevailing wage rate, the employers make advertisements to test the labor market. The employers will have to advertise the position offered in a newspaper, an internal posting, or online. They will also have to ensure that they display three additional forms of recruitment. Now, these three additional forms of recruitment include advertisement on a website that does not show job categories, a spot in the local newspaper, an employee referral program, or on-campus recruiting. Doing all of this is necessary because it is the only way to make DOL believe with certainty that there is no able and willing US employee who wants to take up the job offered to the immigrant.
Many people ask the necessity of these ads being offered when the job already belongs to a foreign national, i.e., the employee that is seeking the PERM certificate. The position offered to the immigrant is on a temporary visa status. An example of this can be the H-1B visa which has a limit of six years. Therefore, the foreign national is not a permanent employee. The employee can become a permanent employee only after getting the PERM certificate.
What happens when a US applicant wants to take your job?
You might be thinking, what happens if there are US applicants that want your position? At first, you must note that only ‘permanent’ US citizens will be considered and not any other visa applicants. If there are applicants that meet the minimum criteria, they will be contacted by the employer. The employer must contact them in good faith; otherwise, the PERM application can be rejected. If these applicants accept the position, unfortunately, the ongoing PERM process cannot be continued at that time.
However, the employer can start the process again (from scratch) after six months. The employer will have to make all the advertisements again. Please note that the employee cannot apply if the employer has not had a single layoff in the past six months.
On the other hand, if an application gets rejected, the employer can also file an appeal. In this appeal, the certifying officer shall listen to the employer’s argument on why the rejection was made in error. If satisfied by the argument, the application will get approved. However, if the argument is not accepted, then the application will be forwarded to the Board of Alien Labor Certification Appeals (BALCA). BALCA will render the final decision based on the documents and the evidence received.
How should the employers make the advertisements?
The employer must also note that the minimum requirements cannot be tailored so that no person meets them. It should be genuine. To ensure that the advertisements are displayed in good faith, a few points should be noted. These include: the requirements must not exceed the job’s qualifications, the employee (foreign national) should establish that he meets those requirements. Further, terms like team player or master’s degree required cannot be used. Lastly, while specifying certain special skills is permissible, there cannot be a long list of them. That shall be a direct red flag for the DOL to reject the advertisement altogether.
What happens after the PERM application is filed?
After the PERM application is filed, three circumstances can take place – your application shall get accepted, or your application shall get audited (this can be either random or based on a red flag in the application). Or your application will get rejected (this happens only when the requirements have not been met). It is pertinent that we understand the meaning of audit here. Audit, in simpler words, is a request filed by the DOL for clarification or further evidence on some aspect of the application. These might include evidence related to appropriate contact being made with applicants after advertisements, evidence on the reason behind the requirement of a minimum degree for the post, or employment experience, or academic knowledge, or certain skills, or even the knowledge of a foreign language and domestic or international travel.
Lawyers at Florida Immigration National Counsel ensure that these audits do not happen, and in case they do, they make it a point to be prepared to furnish evidence. From our experience, the most common audit that is received explains why all other applicants were unworthy of the position. In this case, the employer (in good faith) must state the reasons for rejections in detail. In an exceptional case, the DOL may want the employer to go through the process of “supervised recruitment.” As the name suggests, the entire recruitment shall be redone under the supervision of the DOL under this process. The advantage of such supervised recruitment is that if there are no applicants, then the PERM application shall surely get approved by the DOL.
What has to be done if the PERM application gets approved?
If your application gets approved, you will have to file an I-140 Immigrant Worker Petition. These will include two things: a) evidence that establishes the employer has the requisite income to pay the stated salary to the employee; b) evidence that proves that the employee meets all the requirements. Please note that the employer must also be willing to submit financial documents to USCIS that prove that he has the requisite income (as mentioned above). These documents shall remain confidential and will not be given to any employee under any circumstance. Finally, the third step will be to file the I-485 form for the green card. This application is filed by the employee or any dependent family members.
Conclusion
We understand that the process is cumbersome, and thus we advise you to get in touch with lawyers at U.S. Immigration Law Counsel. The lawyers here will guide you at every step and further streamline the process for you. We are certain that with our help, you will be able to file all the requisite documents on time and furnish all appropriate evidence to establish your claim. We wish you all the best in your application journey.
