Considerations When Initiating a PERM Labor Certification for a Foreign Worker
Employers seeking to sponsor a foreign worker’s employment-based green card usually follow the Program Electronic Review Management (PERM) labor certification route. In making a successful application for PERM with the Department of Labor (DOL), the employer must show that it intends and is willing to pay at least the prevailing minimum wage in that location. Employer must also show that other qualified U.S. workers are not being cheated out of the opportunity to fill the vacancy.
These two points could make anyone imagine that the PERM process was simple, when in reality it is a complicated process, and an innocent mistake could make everything go wrong. Not only must the steps in the process be done correctly from the beginning, it must continue to be done properly long after the certification has been granted. Understanding the considerations to note when hiring through PERM could make all the difference in making an already complicated process smoother.
- Foreign workers are barred from shouldering all the costs connected to the PERM process. It is expected that the employer applying on their behalf bear these costs including legal fees and immigration labor advertising fees.
- Depending on the country of origin of the foreign worker, it might take years before being able to apply for the green card even after the PERM labor certification has been granted. Because of this, and since the PERM labor certification is a very important requirement in a green card application, it is important that it continues to be valid long after it is issued and until when the green card is issued.
The validity of a PERM labor certification is only in the specific area of intended employment. This means significant changes like relocation of worker to a different worksite would need a new PERM, but insignificant changes like wage increase or job title would not affect its validity. It therefore helps to provide the details or the foreign worker’s duties and position in the ETA Form 9089.
- Employer must show that they can maintain payment of the offered full time salary before and after the PERM labor certification is granted and even long after that, until the worker gets the green card. Proving this is easier for larger companies, but could be tricky for smaller companies. But that can be overcome by simply paying the offered salary to the worker and presenting a record of it.
- Being careful not to perform any layoffs few months before and after the filing of a PERM labor certification. However, a layoff not related to the vacancy or not affecting a U.S. citizen would not affect the application.
- Since before a PERM labor certification process is initiated, employer must have advertised the vacant position, where a qualified U.S. citizen applies for the position during the PERM process, the entire proceedings must be placed on hold. This is just a way to ensure no qualified U.S. worker is being marginalized.
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