Navigating the complexities of the employment-based immigration process can be daunting, especially when it comes to the PERM labor certification. For employers and immigration attorneys in New York City, understanding each step involved is crucial for ensuring a smooth and successful application.
This guide walks you through the essential stages of the PERM labor certification process, providing valuable insights to help streamline your efforts.
About PERM Labor Certification
The Program Electronic Review Management (PERM) is the first step in the employment-based green card process for foreign workers. Administered by the U.S. Department of Labor (DOL), the PERM labor certification process NYC is designed to ensure that hiring a foreign worker will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
Step 1: Determine Job Requirements and Qualifications
Define the Job Position
Before initiating the PERM process, employers must clearly define the job position for which they seek to hire a foreign worker. This includes detailing the job title, duties, requirements, and qualifications. The specifics of the job description play a crucial role in the subsequent steps of the certification process.
Assess the Foreign Worker’s Qualifications
Employers must also ensure that the foreign worker possesses the necessary qualifications for the job. This includes verifying education, experience, and any special skills required for the position. Proper documentation of these qualifications is essential for a successful PERM application.
Step 2: Prevailing Wage Determination
Submit Prevailing Wage Request
The next step involves submitting a prevailing wage request to the DOL. The prevailing wage is the average wage paid to similarly employed workers in the same occupation in the geographic area of employment. Obtaining this determination is critical, as the employer must offer at least the prevailing wage rate to the foreign worker.
Wait for Prevailing Wage Determination
Once the request is submitted, the employer must wait for the DOL to issue the prevailing wage determination. This process can take several weeks, so it's important to plan accordingly to avoid delays in the overall certification process.
Step 3: Recruitment and Advertising
Conduct Recruitment Efforts
The heart of the PERM labor certification process lies in the recruitment phase. Employers must make a genuine effort to recruit U.S. workers for the job position. The DOL mandates specific recruitment steps, including:
Job Order: Place a job order with the State Workforce Agency (SWA) for a minimum of 30 days.
Newspaper Advertisements: Publish two Sunday advertisements in a widely circulated newspaper in the area of intended employment.
Additional Recruitment Steps: Depending on the job position, additional recruitment steps may be required, such as an online job posting, job fairs, or campus recruitment.
Document Recruitment Efforts
Employers must meticulously document all recruitment efforts, including copies of advertisements, job orders, and responses received. This documentation serves as evidence that the employer made a legitimate attempt to hire U.S. workers before considering a foreign worker.
Step 4: File ETA Form 9089
Complete and Submit ETA Form 9089
Once the recruitment process is completed, the employer can proceed to file ETA Form 9089, the Application for Permanent Employment Certification. This form includes detailed information about the employer, job position, recruitment efforts, and the foreign worker’s qualifications. It is crucial to ensure accuracy and completeness when filling out this form, as any discrepancies can lead to delays or denials.
Await DOL Review
After submission, the DOL reviews the application to ensure compliance with all regulations. This review process can take several months. During this time, the DOL may issue requests for additional information or conduct an audit to verify the accuracy of the submitted documentation.
Step 5: Respond to Audits and Requests for Information
Prepare for Potential Audits
Employers should be prepared for the possibility of a DOL audit. If selected for an audit, the employer must provide additional documentation to support the PERM application. This may include proof of recruitment efforts, interview records, and other relevant information.
Respond Promptly to Requests
Timely and thorough responses to DOL requests are essential for maintaining the integrity of the application process. Failure to respond adequately or within the specified timeframe can result in a denial of the PERM application.
Step 6: Approval and Next Steps
Receive PERM Approval
If the DOL is satisfied with the application and all supporting documentation, the PERM labor certification will be approved. This approval is a significant milestone in the employment-based immigration process, as it allows the employer to proceed with filing an Immigrant Petition for Alien Worker (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS).
File Form I-140
Once the PERM labor certification is approved, the employer can file Form I-140 on behalf of the foreign worker. This form establishes the employer’s intent to hire the foreign worker for the certified position and verifies the worker’s qualifications. The approval of Form I-140 is the final step before the foreign worker can apply for a green card.
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