Permanent Labor Certification (PERM)
Labor Certification is often the biggest hurdle for prospective immigrants and employers seeking EB-3 visas. The Department of Labor (DOL) must certify (1) that there are no qualified U.S. workers able, willing and available to accept the same job at the prevailing wage for that occupation in the area of the intended employment, and (2) that the foreign national’s employment will not adversely affect the wages and working conditions of U.S. workers similarly employed. Employers interested in permanent employment of foreign nationals should strictly comply with the requirements for labor certification. Short cuts and/or underestimating how the Department of Labor will view an application may result in denial of certification.
Employers seeking Labor Certification must do the following:
- Complete an Application for Permanent Employment Certification (ETA Form 9089) describing in detail the job duties, educational requirements, training, experience and other special abilities the employee must possess to do the work, and set forth the prospective employee’s qualifications;
- The employer must show that the employee will be hired full time for a bona fide job opening available to U.S. workers, will be paid the prevailing wage, and that the job requirements are what are customarily required in the United States for the occupation. The job requirements cannot be unduly restrictive (unless adequately documented as arising from business necessity), nor can the employer tailor job requirements to fit the prospective immigrant’s qualifications.
- Determine the prevailing wage via the State Workforce Agency (SWA) with jurisdiction over the area of intended employment;
- Attest to appropriate recruitment efforts within the U.S. for the available job (meet certain standards of recruitment), including identifying the number of U.S. workers rejected categorized by the lawful job-related reasons the U.S. workers were rejected;
- Although supporting documentation is not required to be submitted with the application (including job postings, applications and resumes from rejected applicants, and prevailing wage determinations from the SWA), each applicant is required to maintain all supporting documentation for five years and is subject to audit at which time said documentation must be produced.
Consult San Diego Immigration Lawyer Donald R. Oder to reduce your risk of denial.
Schedule A Occupations (nurses and physical therapists): The Department of Labor has certified that there are an insufficient number of qualified U.S. workers able, willing and available to work in certain occupations, and that employment of foreign nationals in those occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. Schedule A occupations include professional nurses, physical therapists and foreign nationals of exceptional ability in the sciences and arts (including college and university teachers). Employers seeking to hire qualified foreign nationals in Schedule A occupations do not need to obtain labor certification.