When an employer in the United States wants to hire a foreign worker on a permanent basis, he or she must initiate a complex sponsorship process for a green card. This process can take years. In most cases, these employers must file an Application for Alien Labor Certification with the United States Department of Labor (DOL) and obtain permanent labor certification from DOL’s Employment and Training Administration.
The purpose of the labor certification is twofold. It must demonstrate to the United States Citizenship and Immigration Services (USCIS) that there are not enough United States workers who are “able, willing, qualified and available” to accept the job offered by the employer. Also, it aims to protect workers in the United States; employment of the foreign worker should not displace similarly situated workers who have United States citizenship by negatively impacting their working conditions or wages.
There are strict requirements for employers conducting recruitment in connection with this type of petition, and several steps must be taken before an Application for Alien Labor Certification is filed. To improve the backlogged operations of what is known as the permanent labor certification program (PERM), the Employment and Training Administration reengineered the process to be electronic in 2005.
Many years ago, this process involved a lengthy interview process in which the employer needed to persuade officials that all the United States applicants were unqualified. This process has changed and is described below. Meeting the requirements is easier with the help of an experienced Maryland PERM lawyer with good judgment.PERM Labor Certification Process
The process of labor certification requires that the employer pay whatever the prevailing wage rate for the type of job at issue is, as determined by the U.S. Department of Labor. The employer must place ads to test the existing United States labor market for qualified U.S. workers. Employers who file an application must show the DOL that they made good faith efforts to contact each job applicant who responded to the ads.
A resume alone is unlikely to disqualify a worker, and further steps such as an interview may need to be taken. Furthermore, the reasons for disqualification must be lawful, as well as acceptable by DOL standards. For example, the DOL will not accept an argument that a United States applicant was overqualified for the job if the job applicant in fact possessed the minimum degree and the experience that were necessary to do the job. The Department of Labor maintains a database of normal requirements for various types of jobs. If an employer's requirements for a particular job are greater what the Department of Labor considers normal, the employer must develop a strong argument for business necessity.
Job applicants who don’t respond to phone calls or emails by the employer must be sent a letter by certified mail. The DOL requires all employers to maintain the evidence of their recruitment efforts for 5 years after the filing the application.
If this test of the labor market does not turn up United States workers who are qualified to do the job, the employer can file the application with the Department of Labor. The DOL must make a determination that the employer has complied with the rules of the process, and that no qualified United States workers were disadvantaged in the process of hiring the foreign worker. If the DOL makes that determination, it will certify the Application for Alien Labor. This application can then be used to file an Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Service.
The legal procedure for obtaining PERM certification and ultimately a green card for a foreign worker is complex and time-consuming. Maryland PERM lawyer Anthony A. Fatemi, founding partner of the office of Anthony A. Fatemi, LLC has significant experience in these legal procedures, and can help you through the process. Contact us today (301) 519-2801 or via our online form.