If a U.S. employer wants to hire a permanent foreign worker, they need to go through the proper legal channels. Failing to understand the process can come with severe consequences for both the employee and employer. Therefore, any employer interested in hiring a foreign-born employee should learn more about the process.
There are several options for an individual to receive their green card. However, your desired employee may only be eligible for employer-sponsored immigration. If this is the case, you need to consider obtaining a labor certification from the Department of Labor. As with most immigration processes, this one can be difficult. Here at the Florida Immigration Law Counsel, we can help you. In addition to informing you about the process, we can walk you through each meticulous step.
What is a Labor Certification?
The U.S. does not want foreign workers to take jobs away from U.S. citizens or lawful permanent residents. For that reason, there are strict laws regarding employer-sponsored immigration. If you want a skilled or unskilled foreign individual to work for you, a certified labor certification is required.
A Labor Certification is certified by the Department of Labor. By obtaining the certificate, you have proof that the foreign national will not be taking away jobs from U.S. workers. Additionally, you have evidence that their employment will not impact the wages or working conditions of U.S. workers.
About the Process
The certification is proof that there are no U.S. workers that meet the minimum qualifications for this position. Before you apply for the certification, you should make sure the foreign national meets the requirements for the sponsored position. Here are some of the basic requirements:
- Work is on a full-time basis only
- Job is permanent
- Requirements for the job are reasonable and required
- Uncommon job requirements are a business necessity
- The education and experience requirements aren’t too restrictive
- Wage is the same as that of the prevailing wage or higher, as explained by
- the Department of Labor statistics or an approved salary survey
In some cases, employers attempt to make their requirements tailored to their desired employees. However, the Department of Labor does not want this. The job requirements and the wage must be the same as it would be for any other U.S. employee.
As of 2005, all applications for a labor certification go through the Program Electronic Review Management system or PERM. The system requires employers to pay 100% of the prevailing wage. To file, you must do so electronically. Electronic applications typically receive decisions within 90 to 120 days. However, there are exceptions to that timeline.
The Steps to Certification
The certification process is a rigorous one. First, the employer must obtain the wage certification from Washington DC through the filing of the Prevailing Wage Determination. Once the wage is determined for the position, the recruitment process can start.
The recruitment process consists of advertising the position from two to six different avenues, depending on whether the position is a professional one or not. A mandatory place of advertisement is with the state’s State Workforce Agency for a minimum of 30 consecutive days. Within 14 days of an employer receiving an application or resume, the employer must contact each applicant. The employer will need to interview any applicants who meet the requirements for the position. This process typically takes about 45 days.
Once the recruiting campaign is over you must wait 30 days for a “cooling off” period before electronic submission can occur. During this period the employer is preparing a detailed recruitment report of recruitment activities and communication with applications that have occurred. This report will be submitted to the Department of Labor if the application is selected for an Audit. So making sure that the report is done properly is KEY!
The Labor certification is filed electronically and the date that it is filed with the Department of Labor is called the Priority Date. This date is very important for determining when a foreign national is eligible to file for an immigrant benefit.
Once the Labor Certification is certified, the employer has 180 days to file the I-140, Immigrant Worker Petition with USCIS. Depending on whether the I-140 Priority Date is current will determine whether a foreign national can apply for the adjustment of status concurrently in the United States or apply for an immigrant visa through Consular Processing in their home country.
Determining the right course of action can be difficult. This process is incredibly complicated and very specific. Here at Florida Immigration Law Counsel, we have successfully filed hundreds of Labor Certifications and we can assist you. Our firm has years of experience, and we know how to get positive results with the Department of Labor. Contact us today for more information.