Navigating the PERM Labor Certification Process for the EB-3 Visa

Securing an EB-3 visa is a gateway to achieving permanent residency in the United States, especially for skilled workers, professionals, and unskilled workers. However, the process involves several critical steps, one of the most important being the PERM labor certification. The PERM (Program Electronic Review Management) labor certification is designed to ensure that hiring a foreign worker will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. Here’s a comprehensive guide to navigating this essential process for your EB-3 visa application.

Understanding the PERM Labor Certification Process

The PERM labor certification process involves several key steps that must be meticulously followed to ensure a successful outcome. Each of these steps aims to test the U.S. labor market and confirm the necessity of hiring a foreign worker. Here’s a breakdown of the process:

Step 1: Securing a Job Offer from a U.S. Employer

The first step in the PERM labor certification process is obtaining a legitimate job offer from a U.S. employer willing to sponsor the foreign worker for an EB-3 visa. The job offer must be for a full-time, permanent position that aligns with the applicant’s skills, experience, and qualifications.

Employer’s Commitment: The U.S. employer must commit to undergoing the PERM process and comply with the U.S. Department of Labor (DOL) requirements. This includes demonstrating that there are no qualified U.S. workers available for the position.

Step 2: Determining the Prevailing Wage

Before initiating the recruitment process, the employer must obtain a prevailing wage determination from the DOL. The prevailing wage is the average wage paid to similarly employed workers in the geographic area of employment. The purpose of this step is to ensure that the foreign worker’s employment will not negatively impact the wages of U.S. workers.

Filing Form ETA-9141: The employer submits Form ETA-9141 to request the prevailing wage determination. The DOL will then issue a prevailing wage determination based on the information provided.

Step 3: Recruitment Process

The employer must conduct a thorough recruitment process to test the U.S. labor market for qualified U.S. workers. This involves several mandatory and additional recruitment steps:

Mandatory Recruitment Steps:

Job Order: The employer must place a job order with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be posted for at least 30 days.
Newspaper Advertisements: The employer must place two advertisements in the Sunday edition of a newspaper of general circulation in the area of intended employment. If the job is located in a rural area with no Sunday edition, the employer can use the newspaper with the widest circulation.
Internal Posting: The employer must post a notice of the job opportunity at the worksite for at least 10 consecutive business days. The notice must include information about the job, wages, working conditions, and how to apply.

Additional Recruitment Steps (for Professional Occupations):

For professional occupations, the employer must complete at least three additional recruitment steps from the following options:

Job Fairs: Participation in job fairs.
Employer Website: Posting the job opportunity on the employer’s website.
Job Search Websites: Posting on online job boards (e.g., Indeed, Monster).
On-Campus Recruitment: Engaging in on-campus recruitment at educational institutions.
Trade or Professional Organizations: Posting in professional trade or organization publications.
Private Employment Firms: Using private employment firms or recruiters.
Employee Referral Program: Utilizing the employer’s current employee referral program with incentives.
Campus Placement Offices: Posting in university or college campus placement offices.

Step 4: Documenting Recruitment Efforts

The employer must meticulously document all recruitment efforts and results. This includes:

Recruitment Report: A detailed recruitment report that summarizes the recruitment process, advertisements placed, and results of the recruitment efforts. The report must outline the number of applicants, reasons for rejection, and any interviews conducted.
Advertisement Proofs: Copies of the job advertisements, including the newspapers’ name, dates of publication, and text of the ads.
Job Order Confirmation: Documentation of the job order placement and confirmation from the SWA.

Step 5: Filing Form ETA 9089

Once the recruitment process is complete and the employer has documented all efforts, the next step is to file Form ETA 9089 (Application for Permanent Employment Certification) with the DOL. This form includes detailed information about the job offer, employer, foreign worker, and recruitment efforts.

Electronic Filing: The PERM application is typically filed electronically through the DOL’s online system. The date of filing becomes the priority date, which is crucial for determining visa availability.

Step 6: DOL Review and Audit

After filing Form ETA 9089, the DOL will review the application. The review process involves verifying the employer’s recruitment efforts and ensuring compliance with all regulations. The DOL may also request additional documentation through an audit.

Audit Process: If the DOL selects the application for an audit, the employer must provide the requested documentation within 30 days. The audit may include detailed scrutiny of recruitment efforts, job advertisements, and the recruitment report.

Step 7: Responding to a Notice of Findings

If the DOL finds any issues or discrepancies in the application, they may issue a Notice of Findings (NOF). The employer must respond to the NOF within 30 days, addressing the issues raised and providing any additional information requested.

Resolving Issues: It is crucial to respond promptly and accurately to the NOF to resolve any concerns and avoid delays or denial of the application.

Step 8: Approval of Labor Certification

If the DOL is satisfied with the application and all documentation, they will approve the labor certification. The employer will receive a certified Form ETA 9089, which is valid for 180 days from the date of certification.

Step 9: Filing Form I-140

Upon receiving the certified labor certification, the employer must file Form I-140 (Immigrant Petition for Alien Worker) with U.S. Citizenship and Immigration Services (USCIS). This petition establishes the employer’s intent to hire the foreign worker and confirms the worker’s qualifications for the position.

Supporting Documents: The I-140 petition must include the certified Form ETA 9089, evidence of the job offers, the foreign worker’s qualifications, and proof of the employer’s ability to pay the offered wage.

Step 10: Monitoring Visa Availability

After the I-140 petition is approved, the foreign worker receives a priority date, which determines their place in line for an immigrant visa. The priority date is typically the date the labor certification was filed.

Visa Bulletin: The U.S. Department of State publishes a monthly Visa Bulletin that indicates visa number availability for various categories and countries. The foreign worker must monitor the Visa Bulletin to see when their priority date becomes current.

Step 11: Adjustment of Status or Consular Processing

When the priority date becomes current, the foreign worker can proceed with either adjustment of status or consular processing:

Adjustment of Status:

If the foreign worker is already in the U.S. on a valid nonimmigrant visa, they can file Form I-485 (Application to Register Permanent Residence or Adjust Status) with USCIS. This allows the foreign worker to change their status to permanent resident without leaving the country.

Consular Processing:

If the foreign worker is outside the U.S., they must undergo consular processing at a U.S. embassy or consulate in their home country. This involves attending an immigrant visa interview and providing required documents.

Step 12: Attending the Interview

Whether attending an adjustment of status interview or a consular interview, preparation is key. The interview provides an opportunity for the immigration officer to verify the foreign worker’s eligibility and qualifications.

Preparation: Review the application and supporting documents and be prepared to answer questions about the job offer, qualifications, and immigration history.
Honesty: Answer all questions truthfully and consistently.

Step 13: Approval and Receiving the Green Card

If the interview is successful and all required documentation is in order, the immigration officer will approve the application.

Receiving the Green Card:

Adjustment of Status: USCIS will mail the green card to the foreign worker’s U.S. address.
Consular Processing: The foreign worker will receive an immigrant visa in their passport, allowing them to enter the U.S. as a permanent resident. Upon arrival, they will receive their green card by mail.

Conclusion

Navigating the PERM labor certification process for the EB-3 visa requires careful planning, meticulous documentation, and adherence to regulations. By following these steps and seeking professional assistance when needed, employers and foreign workers can successfully navigate the process and achieve their goal of obtaining permanent residency in the United States.

The key to success lies in choosing the right employer, understanding the requirements, preparing thorough documentation, and staying informed throughout the process. With persistence and careful attention to detail, the dream of living and working in the U.S. can become a reality.

If you have any further questions or need assistance with the PERM labor certification process or the EB-3 visa application
Visit us at: www.bhslgroup.com

Phone: +1-212-347-6364

Email: info@bhslgroup.com