An Essential Part Of The Green Card Process
A Labor Certification must be obtained by an employer in order to file an application for a Green Card on behalf of an employee being sponsored for a permanent, full-time position.
A Labor Certification is a formal finding by the United States Department of Labor (“DOL”) that there is a job opening which an employer is unable to fill with a United States Citizen or Permanent Resident, and for which the employer is offering the prevailing wage on a permanent and full-time basis. The DOL published new regulations concerning the Labor Certification system that became effective on March 28, 2005. The new system was called Program Electronic Review Management (“PERM”). Under the PERM system, the employer must file an extensive, electronic application with the DOL attesting not only to the recruitment but also attesting to having complied with numerous other requirements prior to the filing. A computer system then checks the application to screen for any “red flags.” Those applications that raise red flags or are randomly selected are audited. The following is a summary of the six steps necessary to file a Labor Certification application under the PERM system:
1. Registration—Employers must begin the process by registering an online account with the DOL. This step must be completed by an authorized representative for the employer, and may not be done by the foreign national or the attorney. However, our office will assist employers with the registration process. Once the employer has registered, the employer may authorize the attorney to have a sub-account connected to the employer’s account. Employers that file multiple Labor Certification applications only need to complete this step once.
2. Prevailing Wage Determination—When the job description and minimum requirements for the position are finalized, the employer will need to file a Prevailing Wage Determination with the Department of Labor’s National Processing Center (“NPC”). It is important to note that if the foreign national is currently working for the employer in the same position, he or she must have met all of the minimum requirements for the position before starting that employment. If the foreign national qualifies for a promotion to a higher level position, then he or she may be able to use the experience gained in the lower level position to qualify for the higher level position. The foreign national will need to provide letters from previous employers and/or documentation in order to prove that he or she met all of the minimum requirements before starting to work for the employer. Based on the position, job duties, and minimum requirements, the NPC will issue a Prevailing Wage Determination for the position. This wage is the minimum that the employer may pay the foreign national for the position listed on the Labor Certification application. Our office will assist in developing the job description and requirements, determining the strongest position for the filing, and will file the Prevailing Wage Determination with the NPC.
3. Recruitment—Prior to filing the application, the employer is required to conduct recruitment using multiple sources (newspaper, Internet, etc.). All advertisements must include the company name, a specific job title or description, and clear instructions on how to apply for the position. Employers must also post an internal notice announcing the filing (including the salary) at the work site and in any in-house media. Our office will draft all of the recruitment and assist with the proper placement to comply with the regulations and requirements.
After the position has been advertised, the employer must conduct recruitment efforts, which consist of reviewing applications that result from any of the advertising. The employer must keep detailed records of calls from candidates for the position, resumes that are received, interviews with qualified candidates, and the results for all of the above. Upon completion of the recruitment efforts, it will be necessary to write a detailed attestation of the recruitment efforts and results. Our office will assist with the entire recruitment and attestation process.
4. Preparation of the Application—Upon completion of the recruitment process, we can finalize the actual Labor Certification application and supporting documents. Our office will finalize the form and send it to the employer and employee for review. Along with the form itself, the employer must keep records of all recruitment and attestations in a file on the work site for five years after filing the actual Labor Certification application. Our office will advise employers regarding compliance with these requirements.
5. Submission—Our office will submit the finalized form electronically to the DOL on behalf of the employer.
6. Certification or Audit—If the employer’s case is not red-flagged or randomly selected, the Labor Certification application will be certified by the DOL’s computer system. If the employer’s case is red-flagged or randomly selected, the employer and our office will receive notice that an audit will need to take place. The employer will be notified roughly 30 days before the audit response is due to the DOL. The audit will consist of the DOL requesting the employer’s records to make sure that the employer has complied with all of the requirements listed above. The DOL will want to make sure that all of the advertising and recruitment was completed as attested, and that the employer has kept the proper records on file for all Labor Certification applications that were filed under the new system within the last five years. In the event of an audit, our office will assist with the preparation of the audit response and submit it to the DOL on behalf of the employer.
In order to determine when to begin the Labor Certification process, please keep in mind that the Labor Certification process does not authorize the foreign national to work in the United States. It is a preliminary step that must be completed in order to apply for a Green Card with the United States Citizenship and Immigration Service (“USCIS”). Therefore, it is necessary to ensure that the foreign national can maintain a valid nonimmigrant status during the Labor Certification process, which can potentially be long and is subject to processing delays and visa backlogs. It is therefore important to start the process as soon as possible in order to enable the employee to remain in the U.S. and continue working throughout the entire Green Card process.
Our office works with every employer to make the six steps to obtain a Labor Certification as easy as possible, to ensure compliance with the requirements, and to advise and assist the employer through each step of the process. Please feel free to contact us with any questions and to let us know when you are ready to begin the process.