Navigating the complex landscape of U.S. immigration, particularly for skilled foreign workers seeking H-1B visas, requires a comprehensive understanding of the various steps involved. At the heart of the process lies the PERM Labor Certification, a crucial and often intricate component that significantly impacts an individual’s eligibility for an H1B visa. This article delves into the intricacies of PERM Labor Certification, shedding light on its significance, the application process, and key considerations for employers and foreign nationals alike.
What is PERM Labor Certification?
A permanent labor certification (PERM) from the Department of Labor (DOL) allows an employer to hire a foreign worker to work in the US permanently. In most cases, the employer must secure a certified labor certification application from the DOL Employment and Training Administration (ETA) before he or she can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS). The DOL should certify to the USCIS that there are no sufficient US workers able, willing, qualified, and available to accept the job in the area of intended employment and that the employment of the foreign worker won’t affect adversely the wages and working conditions of similarly employed US workers.
What are the requirements for the Permanent Labor Certification for H1B Visa?
In order for the PERM labor certification for H1B visa to be approved, you must meet several requirements. They are discussed below.
According to Federal Regulations (CFR § 656.10 (c)), to apply for a permanent labor certification, the employer must attest to the following.
- The job listing was made available to US workers.
- The wage offered to the prospective employee is equal to or greater than the “prevailing wages” in the relevant field.
- The employer can place the prospective employee on payroll before or on the day of their arrival in the United States.
- The denial of employment to U.S. citizen applicants must be based on lawful reasons.
- The offered wages are not contingent on bonuses, commissions, or any form of financial incentives.
- The prospective employee will consistently receive a wage at or above the mentioned “prevailing wages.”
- The employer has the financial capability to fulfill the promised wages.
- The employer didn’t discriminate based on age, sex, race, creed, religion, color, nationality, disability, or citizenship in making the job offer.
- The job did not become available due to a strike or labor stoppage.
- The working conditions and terms of employment comply with all relevant legal standards, including Federal, state, and local statutes.
- The job is a full-time, permanent position.
- The employer is not the same individual as the non-U.S. citizen.
Apart from fulfilling these basic requirements, the employer must undertake specific “recruitment steps” before submitting their application, as outlined in CFR § 656.17. In the case of a job opening for a “professional occupation,” where the job applicant must possess a minimum of a bachelor’s degree or equivalent experience to be eligible, the employer is required to, at a minimum, initiate a job order with the State Workforce Agency (SWA) for a period of at least 30 days, publish a minimum of 2 advertisements in two distinct Sunday editions of a widely-read newspaper, and choose three additional recruitment methods from the list below.
- Advertisements on TV or radio
- College campus placement programs
- Incentivized employee referrals
- Job fairs
- Job listings on the business’ website
- Job search sites, like Indeed or Monster
- Local and ethnic newspapers
- Recruitment agencies
- Trade organizations
- University campus recruitment
For “nonprofessional occupations,” the employer is required to initiate a job order with the SWA and publish two newspaper advertisements. All recruitment activities must take place during the six months leading up to the filing date – but no less than 30 days prior.
Employer’s Advance Notice
The employer is required to provide advance notice of their intention to submit the PERM application. This notice must be documented and delivered either to the union representative of any current employees holding similar positions or, in the absence of such a representative, directly to the workers at their place of employment. The notice should adhere to the following conditions.
- It must be given between 30 and 180 days before submitting the PERM application.
- It must include the offered wage to the prospective employee, surpassing the prevailing wages in the relevant field determined by the SWA.
- It should provide the address of the Certifying Officer handling the application.
- It must explicitly state that anyone can submit evidence related to the PERM application directly to the Certifying Officer.
- It must indicate that a PERM application will be filed soon.
Upon meeting these specified requirements and providing notice within the appropriate timeframe, the employer is then permitted to commence the process of completing the permanent labor certification application.
Filing of ETA Form 9089
To secure a PERM certification, employers are required to submit ETA Form 9089 (Application for Permanent Employment Certification). This form can be filed either online or through traditional mail.
In the case of mailing the application, the employer, the non-US citizen beneficiary, and the individual preparing the application must sign the form before sending it to the DOL processing center. Alternatively, if opting for online submission, they need to sign the certification promptly upon receipt. To adhere to auditing standards, all documentation collected throughout the application process must be retained for a minimum of five years following the submission of Form 9089.
What is the average processing time for a Permanent Labor Certification?
The typical processing period for a PERM application ranges from 6 to 12 months. It is important to note that PERM processing times may vary considerably based on specific circumstances.
To expedite the process, employers can enhance their chances of a swift turnaround by submitting the PERM application through the Permanent Online System. By utilizing the convenient PERM tracker, they can consistently monitor the status and progress of their case.
Is there a filing fee for a PERM labor certification for H1B Visa?
Although there is no filing fee for Form 9089, there are various costs associated with the PERM process. Employers may consider hiring an attorney to prepare the required paperwork and offer guidance throughout the procedure.
Furthermore, the employer is responsible for covering all expenses related to recruitment. This includes the payment for two separate print advertisements, typically costing around $500 per ad. The exact price can vary based on such factors as the newspaper’s circulation, size of the advertisement, and location of the news outlet.
In addition to these PERM-related costs, the employer must bear the filing fees for any forms submitted to the USCIS. The fee for Form I-140, filed by the employer on behalf of the green card beneficiary, is $700.
How to avoid receiving PERM Labor Certification audit?
Receiving a PERM audit has the potential to significantly prolong the overall processing time of the PERM application, possibly leading to denial or the imposition of supervised recruitment for future certification processes. To avoid these complications, employers should take proactive measures. Some recommendations to guard against a PERM audit include:
- Avoid tailoring the job position requirements to favor the beneficiary.
- Ensure that all recruitment-related procedures align with the guidelines set by the DOL.
- Conduct thorough screening and interviews for all applicants to the position.
- Keep supporting documents for a minimum of five years, including prevailing wage determination documents, advertising and recruitment records, and business necessity documents.
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