A Permanent Foreign Labor Certification from the Department of Labor (DOL) allows U.S. employers to hire foreign workers to work permanently in the U.S. In most instances, before the U.S. employer can submit an immigration petition to the United States Citizenship and Immigration Services (USCIS), the employer must obtain an approved Labor Certification request from the DOL’s Employment and Training Administration (ETA).
A Foreign Labor Certification certifies that the employment of the foreign national will not displace nor adversely affect the wages and working conditions of U.S. workers (U.S. Citizens and Legal Permanent Residents) who are similarly employed. To obtain a Labor Certification the employer must file ETA Form 9089, Application for Permanent Employment Certification, with the DOL establishing that both of these criteria have been met.
Requirements for Labor Certification under PERM Processing
In order to obtain the Foreign Labor Certification, the employer must satisfy the following requirements:
The employer must have a bona fide offer of full-time, permanent employment for the foreign worker
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity
The employer must pay at least the prevailing wage for the occupation in the area of intended employment
The employer must certify that U.S. workers who applied for the job were rejected for lawful job-related reasons
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Applying for Alien Labor Certification under PERM
In order to certify that there are no U.S. workers who are willing, qualified and able to perform the job offered, the employer must conduct bona fide recruitment. If the employer is unable to find any U.S. workers who are willing, qualified and able to perform the job offered, then the employer may file the ETA Form 9089
with the Department of Labor.
The employer must obtain a Prevailing Wage Determination from the National Prevailing Wage and Helpdesk Center of the DOL. The offered wage for the job opportunity cannot be lower than the prevailing wage
Depending on the nature of the job and the requirements, the employer must perform a statutorily defined set of recruitment steps which includes the placement of advertisements regarding the job opening. The ad must contain the name of the employer and provide a description of the job opening sufficient and specific enough to apprise U.S. workers of the job opportunity. The ad must also indicate the geographic location of the job opening. Most importantly, the ad must not contain any requirements or duties that are not on the ETA 9089 or contain any wages or terms and conditions of employment that are less favorable than those offered to the foreign national. The employer must keep a record of the recruitment effort.
Notice must be given to the employer’s bargaining representative that a DOL labor certification will be filed. If there is no bargaining representative, then notice must be given to the employer’s employees which must be a written notice posted for 10 business days.
The employer must interview all candidates who apply and meet the position requirements. If the employer rejects any U.S. worker, it must be for a lawful job-related reason. If any qualified U.S. worker is identified, then the labor certification application cannot be filed.
The employer will evaluate job candidates against the job criteria (as will be established in Form ETA-9089
, Application for Permanent Employment Certification) and must prepare a Recruitment Report that must be kept for the Audit File. The recruitment report is a summarization of the applications received and the candidates interviewed, including any decisions made to hire or not hire the candidates.
Filing the Labor Certification Application
If no U.S. workers are found, then the employer may file the ETA Form 9089 electronically (the preferred method) or via the traditional paper method. The application must describe in detail the job duties, educational requirements, training, experience and/or other special capabilities the applicant must possess to do the work, and a statement of the prospective immigrant's qualifications.
The Department of Labor (DOL) reviews the application for completeness and assesses whether the wage being offered and designated requirements are met.
The ETA Form 9089 must be filed within 180 days of the first ad/recruitment method being placed but no less than 30 days after the last ad is running.
Per the regulations, the DOL may approve, deny or audit the application. If audited, the DOL will request a copy of the recruitment report and details of the recruitment. The Audit Notification may also contain a request for additional information or clarification if there is an issue with the PERM application. The DOL may also request that the employer conduct additional recruitment through a process called Supervised Recruitment.
Services offered by VisaPro
Our experienced immigration attorneys will prepare and file all the required documents for your Labor Certification application. Our services include:
Complete review of all your personal circumstances
Confirmation that the Labor Certification is appropriate for you
Identification of important legal issues that may affect your Labor Certification application
Checklist of documents that you need for your Labor Certification
Accurate preparation of your Labor Certification application
Submission of the Prevailing Wage Request and Labor Certification application to the DOL
Careful co-ordination of all correspondence with the DOL and any other state or federal government agencies
Online access to your case status
Unlimited personal communication with your own VisaPro immigration attorney
Fast, easy and secure processing through your personal online VisaPro account