Foreign workers provide meaningful value to U.S. employers. When an employer wants to hire a foreign worker, using the PERM labor certification program is one of the most common ways an employer can accomplish that goal.
The PERM process allows U.S. employers a means to sponsor foreign workers. However, understanding the process is vital to the success of having a foreign employee on your team. Failing to follow the required steps can have dire consequences for both the employee and the employer.
AN OVERVIEW OF LABOR CERTIFICATIONS
The United States is very interested in keeping unemployment rates low. As a result, it makes efforts to decrease the employment of foreign workers when there are U.S. workers who could potentially fulfill a job or role.
Employers must obtain a labor certification by demonstrating they went through the proper procedures to conclude whether a U.S. worker was able and willing to fulfill the job. The process intends to give U.S. workers the first opportunity to satisfy a job opening before a foreign worker is considered.
To employ a foreign national, an employer must show that the job meets the following qualifications:
- The job must be permanent.
- The work is for a full-time position.
- The requirements for the job are both reasonable and required.
- Education and experience cannot be too restrictive.
- The wage is either the same or higher than the prevailing wage in the area (based on Department of Labor statistics or a salary survey for the area).
The opening cannot be tailored to a specific foreign national. Instead, the position must be general enough that a U.S. worker could fulfill the role if they met the right qualifications.
WHAT IS PERM?
PERM stands for “Program Electronic Review Management” system. All applications for labor certification must go through PERM for approval.
Your PERM labor certification attorney at David Hirson & Partners, LLP can help you prepare and submit your application.
THE CERTIFICATION PROCESS
The first step to obtaining a labor certification is to get a prevailing wage determination. The Prevailing Wage Determination will confirm the minimum wage for a similar position. The process of obtaining a Prevailing Wage Determination may take up to 3 to 4 months.
Once an employer has a Prevailing Wage Determination, the employer can then begin to advertise for the position. Advertising consists of posting the job in either three or six advertisements, including with the State’s workforce agency. The posting must run, at a minimum, for 30 consecutive days.
Once the employer has completed the advertising period, it must go through another 30-day “cooling off” period. During this time, the employer should prepare a detailed report of its recruitment activities to keep on file in case of an audit by the U.S. Department of Labor.
Next, the employer will submit the PERM application and employers will usually get a decision on their application within approximately 4 months.
Once an application is certified, the employer then has 180 days to file a Form I-140, Immigrant Worker Petition for the foreign employee.
GET HELP FROM A PERM LABOR CERTIFICATION ATTORNEY
The entire process is very specific and technical. Failing to follow any of the required steps can completely invalidate the process. Having an experienced PERM labor certification attorney assist with the process can ensure you are doing it correctly and in the most effective way possible. Contact David Hirson & Partners, LLP, to get more information on how we can assist you with this process.