Immigration Basics: PERM Labor Certification Process24 Sep 2010
Employment-based permanent immigration (often referred to as the “green card process”) is generally a three-part process, starting with a PERM labor certification (LC). The entire green card process is often lengthy and, in many situations, takes years to complete. The basic steps required prior to filing the PERM LC, and an explanation of why it takes months to prepare a PERM LC for filing, are provided here for MurthyDotCom and MurthyBulletin readers to gain a clearer, fuller understanding of this process.
When to Begin the Green Card Process
The PERM labor certification is filed as the first stage in most employment-based green card cases. The labor certification portion of the green card process is not directly connected to the sponsored foreign national’s immigration status. There is no requirement that the foreign national must be in the United States during the PERM LC process. For those individuals who are in the U.S., there are timing considerations with respect to potentially remaining in the country without interruption. Such considerations are outside the scope of this article. However, when trying to develop an immigration strategy, the amount of time it takes to file a PERM LC can be important in many contexts. One important example of this can be found in our article, Filing LC in 6th Year of H1B (06.Mar.2009).
PERM Labor Certifications: Time to Prepare
Many individuals are surprised by the length of time required to prepare a PERM case for filing. At the time of this writing, preparation time of approximately four to five months is typical. People often ask if their cases can be filed more quickly. As explained below, the majority of the timeframe is due to requirements within the laws and regulations. An explanation follows as to why it takes so long for a PERM case to be ready for submission to the U.S. Department of Labor (DOL), even when the lawyer and the employer are acting promptly.
Employer Attestations During the LC Process
The PERM labor certification process requires the employer to conduct recruitment efforts to test the U.S. labor market. The employer must attest to the DOL that it has been unable to find qualified U.S. workers at the offered wage in the area of intended employment who are able, willing, and qualified for the position. The employer must also attest that the foreign national will not displace a qualified U.S. worker or adversely affect the wages and working conditions of similarly-employed U.S. workers. The documents establishing the recruitment efforts and results are retained in an audit file, for review by the DOL upon request.
Pre-Filing Steps for the PERM Labor Certification Application
First: Position Details and Prevailing Wage Request
The initial step in the preparation of the PERM LC is for the employer to determine the details of the offered position. This includes establishing the job title, job duties, and minimum education and/or experience requirements for the proffered position. Once these details are established, a prevailing wage request (PWR) must be filed with the DOL. The DOL reviews the job duties and requirements submitted by the employer. Based on this information, the DOL determines the appropriate category and prevailing wage for the proffered position. The employer must offer the position at a wage that is not below the prevailing wage level. The timeframe for obtaining the prevailing wage determination (PWD) varies from case to case. However, it can be as much as a month to receive this determination from the the DOL.
Second: Recruitment Efforts
The employer must engage in multiple recruitment steps prior to filing the PERM labor certification. Recruitment must be completed within 180 days prior to filing the PERM LC. As part of this recruitment process, the employer must place a job order with the State Workforce Agency (SWA) for at least 30 days. The employer must also place two Sunday print advertisements for the position. These ads must appear in newspapers of general circulation in the area of intended employment.
Additionally, for professional positions, the employer must engage in three other types of recruitment efforts appropriate for the position. The options include: participation in job fairs, posting on the employer’s website, or job search websites, use of recruiters, on-campus recruitment, local and/or ethnic newspaper advertisements, radio and/or TV ads, recruitment through professional and/or trade organizations, and employee referral programs. The employer must also post a notice of the labor certification filing for ten consecutive business days.
Once recruitment is completed, there is a 30-day quiet period. The PERM LC application may only be filed after the quiet period is completed. (There is one exception to the quiet period that allows one of the three “other” types of recruitment to run during the quiet period.)
Third: Interviewing Process
Recruitment efforts are likely to generate job applicants. The employer must review the resumes received to determine if there are applicants potentially minimally qualified for the position. The employer must contact these applicants to further determine if there are willing, able, and qualified U.S. workers within the applicant pool. The employer must screen these applicants in a manner consistent with the employer’s hiring practices. If the employer determines that, of the applicants, none is a willing, able, and qualified U.S. worker, the employer will prepare a recruitment summary documenting this determination. This summary is retained in the audit file.
Filing the PERM Labor Certification
The PERM labor certification may be filed after all of the steps described are completed, if the employer has not found a suitable U.S. worker. The PERM LC is usually filed electronically with the DOL. The date it is filed is the priority date. More information on priority dates is available on MurthyDotCom in our article, Immigration Basics: The Priority Date and Its Importance (03.Sep.2010).
The processing times for the PERM vary. Historically, there have been times when PERM cases were processed in as little as a few days or weeks, and there have been other periods when very little processing has occurred and an excess of one and a half years was typical if there was an audit of the case. See our article, PERM/Labor Certifications Slow Processing (27.Nov.2009).
As of this writing, the DOL reports that PERM applications filed in May 2010 are being processed. This translates to approximately a four-to-five-month processing time after filing. Processing times may be monitored on the DOL WebSite. Times increase substantially if there is an audit. This generally delays case processing by more than a year. The DOL reports that they are processing audited cases with priority dates of August 2008. Thus, an audited case might take as much as two years for processing after filing.
The PERM labor certification process is a lengthy and complicated process starting with the case preparation, and continuing through DOL processing after filing. It is necessary to be aware of these timeframes when trying to engage in immigration planning. We at the Murthy Law Firm can assist employers and employees with the entire green card process, including filing the PERM LCs.