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Labor Certification for Non-Citizens

Those who want to establish a permanent residency in the United States can do so through various pathways. These include family-based immigration, adoption, political asylum, and more.

Labor certification is crucial for foreign workers who want to pursue U.S. job opportunities. This article discusses getting permanent labor certifications for non-U.S. citizens and the steps involved in ensuring the interests of U.S. citizens and foreign workers.

What Is PERM Labor Certification?

Employers must follow certain steps before filing an immigration petition with the U.S. Citizenship and Immigration Services (USCIS). The employer needs to get a Permanent Labor Certification. The U.S. Department of Labor (DOL) issues this document allowing foreign nationals to work in the United States.

Once the employer has an approved certification, the next step is immigration authorization. The USCIS processes this. This allows an employer from the U.S. to hire a foreign national to work permanently in the United States.

Note that the petitioning employer is responsible for filing labor certification applications. But the employee must understand how employers process the certification on their behalf.

Below are the specific tasks needed to get a permanent labor certification. First, we'll discuss who is exempt.

Exemptions

Some foreign workers do not need labor certification to get a green card and work in the U.S. The Department of Homeland Security (DHS) determines who needs labor certification. The following visas are available to employees who are exempt from labor certification:

  • First preference. Foreign nationals with extraordinary ability in business, sciences, arts, education, and athletics. Or outstanding professors, researchers, international executives, or managers.
  • Second preference. Professionals with advanced degrees or those of exceptional ability in the arts, sciences, or business
  • Third preference. Skilled workers, professionals holding baccalaureate degrees, and other workers
  • Fourth preference. Special immigrants, such as certain religious workers
  • Fifth preference. Wealthy immigrants who will invest $500,000 to $1 million that will create at least 10 full-time jobs in the United States.

The exemptions above are in descending order of preference for green cards. So, there are more employment-based visas for the first preference group than for the fifth one. Immigrants needing labor certification must follow a distinct process. The following discussion outlines this process for successful labor certification.

Steps to Pursue Labor Certification for Non-Citizens

The following steps provide a thorough understanding of the application process for getting labor certification for employers.

Apply With the State

The first step is to apply with your state's employment security agency (SESA) or State Workforce Agency (SWA). Depending on your state, the name of the agency will differ. The employer must file a Department of Labor form and information about the job description. Also, the form will describe how the prospective immigrant candidate meets these qualifications.

To ensure the application's validity, the petitioner and the beneficiary of the labor certificate should sign the form. The application should also contain a certification stamp with the DOL. It should bear the certifying officer's signature and date of certification.

Next, the SWA will review and approve your submitted qualifications. Part of this process will be a prevailing wage determination. The state investigates the standard rate for equivalent jobs in the country. Once they make this determination, the employer must pay the employee 100 percent of that rate.

Recruiting Process

After the state agency reviews your application and makes a wage determination, you must conduct a recruiting process. The aim is to find a qualified U.S. worker in the U.S. labor market who can perform the listed job.

The SWA strictly monitors this recruitment process, following DOL regulations. Employers should also publicize the job order. They can submit the job opening on statewide databases, newspapers, and employment bulletins. They must also interview anyone who meets the qualifications listed.

After the appropriate recruiting period, employers will submit the results to the SWA. The SWA will closely review the results to ensure all necessary advertisements have run. The DOL prioritizes hiring U.S. citizens before foreign workers. This rule is particularly observed when there is a high unemployment rate in the United States. The SWA evaluates the recruiting process and reports to the DOL.

Results and DOL Approval

Suppose you can't find a qualified and willing U.S. citizen for the job, and the state agency approves your recruiting process. You can submit the labor certification application to the DOL in that case. The application requires completing the DOL Application for Permanent Employment Certification (Form ETA-9089).

Staff at the national processing centers process PERM applications. During this process, they confirm information with the employer. They ensure the employer is aware that they are sponsoring a foreign worker. The NPC staff also informs them that a labor certification application is pending on their behalf. If the DOL finds that the recruiting process was not done in good faith, it may deny the application. An example of an unfair recruitment process is when an employer does not consider a U.S. citizen qualified for the position.

Post-Approval Process

Upon DOL's labor certification approval, the employer can go to the next step. It should file a visa application using the USCIS Immigrant Petition for Alien Workers (Form I-140). Upon approval, the prospective immigrant employee proceeds with their immigrant visa application. For more information on Immigrant Petition for Alien Workers, seek legal advice from an immigration attorney.

PERM Regulations for Small Business Owners

Small businesses with 10 employees or less must follow different steps. The DOL imposes more stringent rules when applying for labor certificates. For instance, the DOL may examine whether the job opportunity is bona fide.

There are cases where the employment raises suspicion. For instance, if the foreign workers have a familial relationship with the business owner. This demands more recruitment requirements beyond the alien labor certification. For more detailed advice, consult a business and commercial law attorney near you.

Legal Framework and U.S. Government Agencies

The above process is the PERM process in a nutshell. But many laws and agencies have a hand in the process. Department of Labor regulation 20 CFR part 656 governs the labor certification of foreign workers. It also sets the duties of U.S. employers who want to hire immigrants. The U.S. Department of Homeland Security (DHS) and the Department of State (DOS) can't approve a visa petition without certain prerequisites. They also can't issue a PERM labor certificate until the secretary of labor certifies conditions.

The Office of Foreign Labor Certification guides the secretary of labor. Specifically, it addresses duties related to admitting foreign workers for employment opportunities. The OFLC handles the labor certification process filed by employers seeking to hire foreign workers. OFLC will issue a certificate if the employer shows a shortage of available, qualified, and willing U.S. workers.

This interplay between these government agencies highlights a stringent regulatory process. It also shows how the U.S. government tries to balance the opportunities of foreign workers while securing the interests of U.S. workers.

The final rule that governs labor certification is the Immigration and Nationality Act (INA). The act contains basic information about immigration to the United States. It also regulates the entry of foreign nationals, whether for temporary visits or permanent residence.

Note that the rules on immigration and labor laws continuously evolve. Stay current on the recent changes to these laws that could affect your case.

Seek Legal Advice on Getting Labor Certification

Navigating the labor certification program can be a challenging process. The recruitment requirements for foreign workers are more than the submission of resumes. The U.S. employer may ask for other supporting documentation. So, it is best to contact an immigration or business and commercial law attorney. They can help you understand the complex immigration laws. They can also give advice on how your immigration status affects your employment opportunities in the U.S.

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