Employers play a big role in an immigrant employee’s ability to obtain U.S. permanent resident status. An employer must often provide a labor certification as part of the application process. This important step is a requirement to apply for a green card for may workers. Providing a labor certification, often referred to as a “PERM,” is more than just filling out a form, however. It requires that employers go through a three-step process, after which there is only one more step required for the employee to obtain resident status in the U.S.
1. Make a Prevailing Wage Request (PWR)
The Immigration and Nationality Act requires that wages offered to immigrant workers will not negatively affect the rates that workers in the U.S. earn while they are employed in a similar job. To ensure that salaries are comparable for purposes of obtaining a labor certification, an employer must request a PWR from the Department of Labor (DOL).
Of course, wages vary significantly across geographic areas and industries. Employers can determine whether their position has a comparable salary by using the Foreign Labor Certification Data Center Wage Library. This is a good place to start if you are unsure if your job provides a prevailing wage based on the market in your area.
The employer must make a PWR by visiting the U.S. Department of Labor’s website. The employer will provide various details about the job to determine what a minimum wage that must be offered may be. These details include things like:
- Worksite location
- Job requirements
- Qualifications necessary
- Job duties
- Hours and working environment
Giving this information to the DOL is a requirement to obtain a labor certification, so employers should hammer out these details long before making an offer to a potential worker.
2. Recruiting and Advertising
As an employer, you must demonstrate to the DOL that there are no qualified workers that are willing and able to fill the position. Part of that process includes a “good faith” recruitment and/or advertising effort. That usually consists of advertising or using recruitment efforts that are normal for the industry; it also includes three mandatory recruitment efforts:
- Place an ad with the state workforce agency in the state where the work will be located.
- Place newspaper ads on two different Sundays for the position. The newspaper should be one of major circulation in the intended area of employment.
- Set out an ad or post a notice of the job opportunity at the worksite location.
If the position is professional, the employer must select three other methods of advertising to meet the requirements. All recruitment and advertising efforts must be no older than 180 days from when you file the PERM application.
3. File ETA Form 9089
Next is to actually file ETA Form 9089 with the DOL. The DOL recommends that employers complete this form electronically, but it can also be submitted by mail as well. You provide much of the same information about the position requirement as was supplied with the PWR and details regarding the efforts you took to recruit or advertise. The form will also include information about the proposed worker, including:
- Place of birth
- Work experience
- Educational background
- Other relevant credentials
Once you submit the application, you must wait several months for the DOL to approve the filing. It can take even longer if the PERM is audited. The DOL will request additional information regarding any aspect of the application if it is reviewed.
- File Form I-140 to Obtain Permanent Residency
Only after the first three steps are completed can you obtain a labor certification that is necessary for the I-140 immigrant visa. The employer can then petition on behalf of the immigrant employee for permanent U.S. residency.
Having an attorney walk you through this process can save valuable time and money. The team at David Hirson & Partners, LLP is available to help! Contact us for more information or schedule an appointment.
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