Because most workers do not qualify for the highly specialized EB-1 and EB-2 Green Card programs (see Overview of Immigrant Visas), the Labor Certification program is the most common approach used to obtain permanent resident status in the United States through employment.

It is important to note that the Labor Certification Application and subsequent immigrant petition can only be filed by a U.S.-based employer. The foreign worker cannot self-petition in this category. The employer-sponsor must extend to the foreign worker an offer of full-time, permanent employment. These are essential eligibility criteria.    

The PERM Process

In March 2005, this complex, multi-agency program underwent major reform which eliminated two different types of application formats, Traditional and Reduction-In-Recruitment (RIR), and introducing a new streamlined process called PERM.

To understand the Labor Certification process, employers need to first understand the underlying policy driving the program. First, the sponsoring employer must prove to the U.S. Department of Labor (DOL) that there are no qualified and available U.S. workers for a particular position in a particular location. Second, the employer must show that employing the foreign worker will not adversely affect wages and working conditions. In the government’s opinion, qualified local American workers must be given the right to the permanent position over the sponsored foreign worker. Therefore, a successful PERM application must demonstrate that the employer-sponsor conducted a series of recruitment activities, such as placing advertisements in a newspaper or journal, and on the Internet. Only after proving that no qualified U.S. workers expressed an interest in the position can the DOL certify the application and thereby allowing the foreign worker to proceed with filing the next step towards permanent residence (green card).

Once approved by the DOL, the Labor Certification together with other immigrant petition materials are submitted with the U.S. Citizenship and Immigration Service (CIS). After successful processing by the CIS, and consultation with the U.S. Department of State, a green card can be issued.

The lawyers at Visa Law Group regularly help foreign professionals and companies prepare and file labor certification applications for skilled and unskilled foreign workers in a wide range of professions. Our past and present clients include: 

• Health Care Clinic Managers and Physicians;
• Software Developers and Network Engineers;
• Environmental Engineers;
• Teachers and Director of Pre-School;
• Accountants;
• Sales Engineers; and
• Technical Writers.

The labor certification application is for many professionals the only viable option towards obtaining a green card.

Key Factors

Under PERM, both the job and the foreign worker must meet certain criteria in order for a labor certification application in the EB-3 category to be considered.

1. The job offered must be full-time and permanent. The employer must define certain minimum levels of work experience or educational requirements, in line with what is customary for the industry.
2. The foreign worker must demonstrate that they have the required education and/or work experience. 
3. The sponsoring company must demonstrate that they have conducted recruitment efforts according to PERM regulations, and that they have not been able to locate a qualified U.S. worker for the position. The employer must also document their financial ability to pay the salary offered, which must equal at least the prevailing wage for the position.  

While the Labor Certification application process may appear routine, success requires complex analysis and careful strategizing. Many applications are denied because requirements stated for a position are deemed unduly restrictive by the DOL, inconsistencies with acceptable industry norms, or the employer’s recruitment efforts were not sufficient for example. With our vast experience in labor certification applications, Visa Law Group provides expertise and guidance in preparing the best possible application, which often is quite a balancing act.  

Labor Certification and H-1B Extensions Beyond Six Years

Many skilled foreign workers are already working for the sponsoring employer pursuant to H-1B status. The maximum time allowed in H-1B status is six years. However, because of DOL’s historically very slow labor certification processing times, the law allows for H-1B extensions beyond the six-year maximum if a labor certification application has been filed before the foreign worker reaches the end of his or her fifth year. The timing of a filing is therefore extremely important.

PERM Filing Procedures

The labor certification process traditionally suffered from processing times of two years or even longer, depending on in what state the application is filed. However, all new applications filed after March 28, 2005, must be filed under the new PERM regulations, and the Federal DOL that will take over responsibility for the program, is expecting processing time to be cut down to approximately 45 to 60 days. This new process will result in one nation-wide queue and the processing time for a labor certification application will be the same, regardless of in what state the sponsored employment will take place.

Our Experience

The lawyers at Visa Law Group regularly help foreign professionals and companies prepare and file labor certification applications. If you need legal advice or help with a labor certification, immigrant petition and adjustment of status, please feel free to contact us at Morris@VisaLawGroup.com