As you may be aware, the Department of Labor recently issued regulations restructuring the labor certification process.  The new process is known as “PERM.”  This information sheet will give you some background information on the labor certification process in general.  Please contact me if you would like to discuss the process further.

Basic information about the labor certification

1. The position must be full time.
2. The employer must be a US employer

There are three general steps to the process.  First, the employer must submit a labor certification application to the Department of Labor (“DOL”).  If this application is approved, the employer submits a petition (Form I-140) to the US Citizenship and Immigration Services (“CIS”) formerly the Immigration and Naturalization Service (“INS”).  If this petition is approved, the employee can then file an application with the CIS for permanent residency (Form I-485).

There are two main requirements for the labor certification.  First, there must be a bona fide job opening.  Second, the employer must demonstrate that there are no qualified US workers who meet the minimum requirements for the position.  If the employer tests the market and finds no qualified US workers, but the DOL determines there was no bona fide job opening, the labor certification will be denied.

The purpose of the labor certification is to ensure that the employer is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that the employer has not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers.  If the labor certification process locates any U.S. workers who meet the minimum requirements (education, experience, training) for the position, the employer will not be permitted to obtain permanent residence for the foreign employee.

The DOL requires that the employer be willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such a worker if one is located.  This requirement is intended to assure that a fair test of the labor market is conducted.  Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes.  Nor may the foreign national participate in interviewing or evaluating U.S. job applicants; because that participation gives the appearance that a fair test of the labor market is not contemplated.

The requirement that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job's minimum requirements.

Under PERM, the employer must undertake recruitment prior to the submission of the labor certification.   The employer will prepare a recruitment report but will not submit it to the DOL.  Rather, the employer will maintain the recruitment report along with other documentation supporting the labor certification application to make available in the event of an audit.  The application will be submitted electronically.  If no audit is conducted, the DOL anticipates a processing time of 45-60 days.  However, the DOL will select applications to be audited either randomly or based on answers to questions on the form.  It is unknown how long the processing time will be in this case.

This letter provides only a broad overview of the labor certification process.  The process is quite complicated.  I would be happy to discuss whether the labor certification process is right for you and your employees.