USA and the UK
Understanding the Permanent Labor Certification
The US Department of Labor (DOL) issues permanent labor certification to employers who wish to hire overseas workers in the country for permanent positions. By obtaining a permanent labor certification, a US employer becomes eligible to sponsor foreign workers for employment-based Green Cards.
The DOL’s Employment and Training Administration (ETA) unit runs the Program Electronic Review Management (PERM) program for assessing the merits of a permanent labor certification application filed by a US employer. They specifically evaluate whether the employer is hiring overseas workers despite qualified and willing US workers being available.
ETA also looks into the employment terms and conditions offered to the foreign workers, to ensure that the wages and working conditions match with that of US employees in similar positions. The goal is to ensure that a permanent labor certification, also known as permanent employment certification, to hire foreign employees does not adversely affect opportunities for domestic workers or their working conditions.
After a permanent labor certification application has been issued, the employer must seek immigration authorization from US Citizenship and Immigration Services (USCIS).
- Understanding the Permanent Labor Certification
- Latest Updates and Changes in PERM Regulations
- Benefits of Obtaining a Permanent Labor Certification
- PERM Audit Process and Potential Issues
- Strategies for a Successful PERM Application
- Appealing a PERM Denial Decision
- How Our Lawyers at US IAS Can Help You
- Frequently Asked Questions
Latest Updates and Changes in PERM Regulations
The DOL brought about certain changes to PERM in May 2023. To start with, the filing process was consolidated in a single platform. Now, both PERM applications and prevailing wage determination requests are submitted through the FLAG portal.
Additionally, Form ETA-9089, the form used by US employers to request permanent labor certification, was also revised. The updated form requests the employers to provide information regarding:
- The number of staff on their payroll in the area of targeted employment
- Whether an agent or attorney has been engaged who also represents the sponsored foreign worker
- The work site where the foreign employee will be employed
- The business justification for certain job requirements, e.g. mandatory proficiency in a foreign language
It remains to be seen how these changes will impact the permanent labor certification program going forward.
Benefits of Obtaining a Permanent Labor Certification
PERM provides the US employer with an opportunity to tap the global talent market. They can recruit skilled overseas workers, particularly in the sectors where there is a skills shortage in the domestic labor market.
In addition, the PERM route is an easier and faster pathway to employer-sponsored permanent residency in the US. For example, an EB-1 green card does not require a PERM certification, unlike the EB-2 and EB-3 Green Cards. However, the overall requirements for an EB-1 Green Card are stricter compared to the EB-2 and EB-3 Green Cards.
PERM Audit Process and Potential Issues
On average, the DOL audits approximately 30% of PERM applications every year. The goal is to ensure that employers are following the process guidelines diligently and not abusing the PERM labor certification process.
Usually, applications are selected for audit at random, but the DOL may conduct a targeted audit if they need more information to judge the merit of an application or have reasons to believe that there are suspicious circumstances involved.
The most common reasons behind a targeted audit are if:
- The job requires less than a bachelor’s degree
- The role requires a degree but no work experience
- The employer has done a layoff recently
- The overseas worker shares close familial ties with the company management or owner or has a financial interest in the company
- The foreign worker received training or did internships with the petitioning employer
- The employer paid for the applicant’s education
- The foreign worker paid for the PERM application
- The intended employment position requires certifications or skills that are not typically required for similar positions
The DOL sends a notice to the employer if their application has been selected for audit, asking them to submit additional information or documentation. A Certifying Officer (CO) will then review the employer’s responses and supporting documents and, if satisfied, will approve the application and have the permanent labor certification issued.
However, if the CO decides that there is incomplete or insufficient information or suspicious circumstances are involved, they may:
- Request further information and documentation, or
- Ask the employer to undergo supervised recruitment, or
- Deny the application
Strategies for a Successful PERM Application
To avoid a PERM denial, it is crucial to avoid the common mistakes mentioned, which may trigger a DOL audit. You need to be sure about your job requirements and why you must hire a foreign worker instead of recruiting from the domestic workforce.
Do not tailor your job requirements to meet the needs of a foreign worker, however skilled and talented they may be, and ensure that the successful applicant meets all requirements for the offered position.
Please also research the market to form an idea about the wage for the job position. The DOL will determine the required wage for the position, also called the “prevailing wage,” but you must be prepared to pay it as well as ensure benefits and working conditions at the same level as US employees enjoy in a similar position.
In other words, plan ahead. It is advisable to seek legal help to make sure you meet the permanent labor certification requirements as specified by the DOL. Dial +1 844 290 6312 today to speak with our legal team, who come with expertise and experience in this area, and who have helped several US employers in the past to obtain a permanent labor certification.
Appealing a PERM Denial Decision
In case of a PERM denial after a DOL audit, the US employer will have the right to file a request for reconsideration, asking the DOL to review the application again for potential application errors or other similar scenarios.
If the DOL refuses to reconsider a denied application, the matter will move to the Board of Alien Labor Certification (BALCA).
Although technically an appeal is possible, please keep in mind that PERM audits, supervised recruitment and denial appeals will increase your PERM processing time to a significant extent. Moreover, if your case goes to BALCA, it may take more than a year to reach a decision.
At IAS, our sympathetic immigration lawyers with knowledge and vast experience in the permanent labor certification process can help you with your PERM application, regardless of the complexities involved in your case.
If you are seeking legal advice for your permanent labor certification application, including eligibility, the application process, and supporting documents, our team can guide you throughout.
Our document and application checking service package offers a thorough assessment to confirm that your supporting evidence is in line with the DOL specifications.
Moreover, if you face a PERM denial, our expert lawyers can help you file a request for reconsideration and/or represent your case in BALCA, if required. Call us today on +1 844 290 6312 to receive bespoke advice from our expert immigration advisers.
Last modified on December 26th, 2023 at 7:46 pm
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The DOL usually takes a minimum of 30 days to process a PERM application. Currently, the average waiting time for receiving a PERM application decision is 7.5 months from the date of submission, which may increase up to 12 months if your application is selected for an audit.
If an employer does not want to take the PERM route to sponsor prospective overseas workers, they may go for alternative options such as the Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers (EB-1B), Multinational Executives or Managers (EB-1C), National Interest Waiver (NIW) categories, etc.