Green Card Process via PERM Labor Certification

June 27, 2014 Kyu Kim

Published on 27 June 2014 Hits: 896

There are several ways of applying for permanent residence ("green card" status). The most common method is through labor certification. Labor certification is an official government finding that willing and qualified U.S. workers are not available to fill the position offered and that employment of a foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers. Generally, this will be done through the process of PERM (Program Electronic Review Management) labor certification, which is issued and regulated by the U.S. Dept. of Labor (DOL).

One very common misunderstanding about labor certification is that it is about the alien employee and not the company. Conceptually, these cases are not about the alien. The application is submitted by the employer, and DOL certifies the position. In this process, the key issue is showing and establishing to the DOL that sufficient recruitment has taken place within six months immediately preceding filing and that the company truly cannot find qualified, able and willing U.S. applicants, or at least cannot find enough of them, to fill all the job openings.

Our job, as immigration counsel, is to help the employer to organize and coordinate recruitment as required under the regulations and an approvable PERM case filed and certified on behalf of a non-citizen employee. In the end, it must be clear to DOL that giving the alien a 'green card' will not adversely affect the U.S. labor market. Once the labor certification is approved, it provides the basis for the employer to file an I-140 petition with USCIS. At this time, with the change in the immigration law in 2002, we can file the employee's and the dependent family's I-485 applications concurrently with the I-140 petition - as long as immigrant visas are available in their preference category.

Based on the above-general explanation, let's now explore some of the common mistaken beliefs about this process and understand the issues correctly.

1. What positions qualify for labor certification? There is a common misunderstanding that the certifiable positions must be certain occupations that are supposedly experiencing a shortage problem. It is not necessarily true. When testing the labor market, the employer is required to go through localized recruitment effort. A local labor market may be very different from the national average. There is also another common misunderstanding that a foreign language requirement makes a position certifiable. Employers, especially when they are expanding, often experience difficulties in finding or retaining qualified candidates or filling all the open positions even without language requirement. All these positions are certifiable positions. In fact, a language requirement without business reasons to justify it would only subject the application to unnecessary audits.

2. What is required of the sponsoring employer? The Employer must have the ability to pay the proposed salary that is at or above the prevailing wage. Prevailing wage is determined by a state agency based on the location of the job, the skill levels, and requirements, etc. On a special note, if the sponsoring employer is related by blood or marriage, he or she will have to make it very clear that a bona fide job opportunity has existed and a qualified U.S. worker would have been hired.

3. Recruitment Recruitment is not a simple paper advertisement but has to be through methods that are specified by DOL. The proposed position must be carefully written because the labor certification procedure is not to locate the most qualified or best candidates but to find minimally qualified worker. The employer may not cite personal preferences or intuitions as a reason for not hiring an otherwise qualifying job applicant. In sum, labor certification is available to all employers who wish to hire a foreign worker for a specialized or skilled position for which they cannot find and secure a U.S. worker. However, the LC (PERM) process requires following the rather specific DOL regulations and guidelines and meeting standards that are sometimes contrary to the common sense, it is extremely important to seek counsel's advice and properly organize and present the application.