This is the certification process whereby the U.S. Department of Labor (DOL) verifies that (1) there are insufficient available, qualified and willing U.S. workers to fill a specific employers position being offer at the prevailing of higher wage rate and (2) the employers hiring of a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
It is a very complicated and time consuming process. Attorney advice and representation is strongly recommended. We have done hundreds of these visas and can steer your company through the maze of requirements related hereto.
Labor Certification is required for EB-2 & EB-3 visas. EB-2 National Interest Waivers Visas are excluded as are Schedule A type employees and sheepherders. It is completed by the employer and first requires:
- Full time employment,
- Permanent employment (not seasonal nor temporary),
- Actual wage paid must be the higher of the prevailing wage or actual wage paid in similar positions, then
- Defining the job and qualifications needed from the employee,
- Obtaining a prevailing wage determination from the State Workforce Agency (SWA), (this can take up to 60 days),
- Conducting a recruitment for U.S. workers to fill the position. This is a key process! Recruitment methods are dictated by the (DOL) as are very stringently determined. Unlike the old and no longer used "Reduction In Recruitment" (RIR) process the newer PERM process is faith base approved. Recruitment can include print advertisements, location posting, job fairs, headhunter agencies, on-campus recruiting, trade journal advertising and a host of other methods. They must take play within a 30-180 day timeframe prior to the PERM filing. Any screw-ups will result in a rejection and mandate starting all over again. Once submitted to the DOL employers recruiting methods are randomly reviewed and DOL workers can and do visit employer's locations to verify their existence and that they have employees. Upon the discovery of fraud the employer can then be subject to only conducting future supervised recruitment. A more stringent and regulated process. The recruitment efforts must be kept for audit for 5 years,
- Prepare a Recruitment Report and file same with the DOL using DOL EMPLOYMENT TRAINING ADMINISTRATION (ETA) Form 9089. The preferred method for filing is electronic, but regular mail service is allowed. Processing normally take about 90 days,
- Finally, upon receipt of the PERM Approval (which is valid for 180 days), it and a USCIS form I-140, with all accompanying documentation and payment of all required filing fees are submitted to the USCIS. Then depending on the preference, by type of visa, (EB-2 or EB-3) and from what country the employee is coming from the wait for a visa begins. Because of "Priority Date Retrogression" Employees from China, India, Mexico or the Philippines may have exceedingly long waits.
Sounds simple enough but this visa process often runs amuck. If it is ever true, here our maxim lives. Remember, "with immigration nothing is as simple as it first appears℠."