Labor Certification is the commonly used name for the process by which a U.S. entity petitions for a foreign national’s green card by obtaining a labor certification from the U.S. Department of Labor (“DOL”). Labor Certification encompassed Reduction in Recruitment (“RIR”) and traditional labor certification. However, petitions filed after March 18, 2005, must use the process known as PERM (Program Electronic Review Management). PERM is supposed to be a more streamlined method of obtaining a labor certification. PERM retains many of the basic principles of the Labor Certification regulations while substantive modifying the process.
In approving a Labor Certification, the DOL is confirming that the foreign national’s employment will not displace or adversely affect the wages and working conditions of U.S. workers in similar positions. Initially, the U.S. entity must determine the minimum requirements for the position and obtain a Prevailing Wage Determination from the State Workforce Agency. In the effort to establish a good faith attempt to recruit qualified workers, the U.S. entity tests the local labor market through newspaper advertisements and other prescribed efforts. Under PERM, upon completion of the Recruitment Campaign, the U.S. entity should file the application online. For cases filed under RIR or traditional labor certification, the Recruitment Campaign is supervised by the DOL.
The sponsor/petitioner must be a U.S. entity. The sponsor may be a person, firm, corporation, contractor, association, or other organization. A foreign entity may file a Labor Certification in the U.S. but it must establish itself as a U.S. branch office and obtain a U.S. tax identification number. The Petitioner must have a work site in the United States at which it can provide full-time, “permanent” employment to the foreign national. The proffered position should not exist due to a lockout or strike. Also, layoffs in intended employment create additional obligations. The sponsor must not have hired workers who are not qualified for comparable positions. Sponsors should be prepared to provide organizational charts with job titles and duties, the percentage of time spent on the various duties, and payroll records to demonstrate it has not hired unqualified workers. To establish the sponsor itself and its position are legitimate the DOL may request specific financial, personnel and corporate documents.
Before undertaking the application process a sponsor must determine the actual minimum requirements and job title for the position. The DOL has a set of normal standards. If the sponsor’s requirements, such as a foreign language or work experience, are outside these standards it must objectively establish that these requirements are based on business necessity. Of course, the foreign national must meet the actual minimum requirements. In this calculation, the experience the foreign national gained with the petitioning sponsor is not counted if it is in a substantially comparable position to that which is being offered.
Under PERM, the Recruitment Campaign must occur between 30 to 180 days prior to filing. Essentially, the sponsor must undertake at least three avenues of recruitment: (1) placement of two Sunday advertisements, in a newspaper of general circulation; (2) posting of a notice of the job opportunity in a conspicuous location on the work site premises and in-house media; and (3) an internet job posting on the state employment agency’s website (for example, the Texas Workforce Commission, www.workintexas.com) for at least 30 days. For Professional positions, those requiring a degree, the sponsor must complete at least three additional avenues of recruitment from a prescribed list.
The sponsor must make a good-faith attempt to interview qualified applicants. Applicants can be rejected only for reasons that the DOL considers “lawful” and “job-related.” The sponsor must maintain detailed documentation throughout the process and draft a Recruitment Report explaining why each job applicant was rejected. After the recruitment is closed 30 days must pass before the sponsor may file the application online. The DOL may raise questions about the application and perform an Audit on the filing.
With the approved labor certification, the U.S. entity may immediately file the Immigrant Petition (Form I-140).
With an approved I-140 Immigrant Petition the beneficiary may file the I-485 Adjustment of Status if certain conditions are met, such as a visa number being available.
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