Permanent Labor Certification

Last updated

Permanent Labor Certification (not to be confused with the Labor Condition Application, LCA) is a process step required by some categories of employment-based immigration to the United States of America. Its stated goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers". [1] U.S. workers are U.S. citizens, nationals or U.S. lawful permanent residents. [2]

Contents

In 2005, an electronic filing system for Permanent Labor Certification was introduced called Program Electronic Review Management or PERM, a widely used term by which the process as a whole is now known.

There are several options available to U.S. employers who wish to hire foreign, non-immigrant workers on a temporary but long-term basis: H-1B visas, L-1 visas, TN status and other options. These temporary options are often sufficient to meet the needs of employer and employee. When a U.S. employer wishes to hire the services of the foreign worker on a permanent basis, however, a complex sponsorship process for the green card begins, a process that can take years. [3] Generally (although not always) the first step in that process is Permanent Labor Certification. Permanent Labor Certification is a process of proving that there are no qualified, willing and able U.S. workers for the position being offered. If there are qualified U.S. workers - in fact, even generally speaking if there are even minimally qualified U.S. workers available- then the foreign worker cannot be offered the position on a permanent basis. This does not necessarily mean that the foreign worker will be immediately replaced by a qualified U.S. worker, though. The foreign worker can still serve out the remainder of their existing U.S. temporary visa, and may well be able to re-apply for Permanent Labor Certification and be approved. But it does create a substantial inconvenience for the U.S. employer who wishes to hire a foreign worker, which does provide some protection to U.S. workers, although the process is controversial.

First step: prevailing wage determination

The first part of the Permanent Labor Certification is the Prevailing Wage Determination (PWD). Before the labor market can be tested to see whether any U.S. workers are willing and qualified to work in a given position for which a foreign citizen is being sponsored, the Department of Labor is required to determine what the average prevailing U.S. wage for that position is. The prevailing wage is based on what an average U.S. worker earns in the same position as the sponsored job, at the same approximate work location. For example, an advanced level U.S. computer programmer would typically have a higher prevailing wage if employed in the San Francisco Bay Area than in Indianapolis. The PWD is designed to ensure that U.S. salaries are not dragged down or undercut by hiring foreign workers through the Permanent Labor Certification process. To request a prevailing wage determination employers must complete Form ETA-9141 (Application for Prevailing Wage Determination) and submit it to the Department of Labor's National Prevailing Wage Center (NPWC). [4] It takes 6-8 months for PWDs to be issued as of 2024. [5]

Appeal of Prevailing Wage Determination

If they believe it is too high, sponsoring employers can appeal the prevailing wage level as determined by DOL's NPWC. The Board of Alien Labor Certification Appeals (BALCA) is responsible for adjudicating appeals.

Recruitment

After the PWD has been issued, the labor market needs to be tested by the sponsoring employer to see if there any U.S. workers who both possess the minimum qualifications and are willing to do the job at the desired work location, at the PWD-determined salary. To this end, sponsoring employers are required to advertise the position (mentioning the exact duties and minimum qualifications that were used to obtain the PWD) in or on:

In addition, sponsoring employers need to advertise the position in any three of the following ways: [6]

Applying for Permanent Labor Certification

If the recruitment period ends with no able, willing, and qualified US workers applying, the sponsoring employer can finally apply for a Permanent Labor Certification with DOL by filing form ETA-9089. By filing the form, the sponsoring employer attests that no minimally qualified and willing U.S. workers could be found. As of early 2024, processing of this application takes approximately 12 months, but can take significantly longer if the case is audited by DOL. [7] DOL can deny Permanent Labor Certification if it deems proper procedures have not been followed, or request an audit.

Appeal of Permanent Labor Certification denial

As with Prevailing Wage Determination decisions, sponsoring employers can appeal DOL denials of Permanent Labor Certifications with BALCA.

Reduction in recruitment

The original Permanent Labor Certification process, used exclusively up until about 1998, involved a lengthy interview process, whereby instructions were provided after filing the case as to how the employer was to go about recruiting for the position. After complying with those instructions, the employer needed to persuasively argue why any U.S. applicants for the position were unqualified - otherwise the petition would be denied. Beginning in 1998, a more streamlined approach called Reduction in Recruitment (RIR) was introduced. Under RIR, the sequence of events was reversed: the employer first did the recruiting, and then filed the case with evidence that no minimally qualified U.S. workers could be found.

RIR tended to speed processing times up somewhat, so that Permanent Labor Certification times which were previously measured in years began to be measured in months. Both regular and RIR Permanent Labor Certification involved filing first with the Department of Labor for the individual state where the job was located (the individual state presumably being most familiar with local labor market conditions) and then, if approved at the state level, the case was then transferred to the federal Department of Labor for final approval.

Program electronic review management

In March 2005 a completely electronic Permanent Labor Certification system, PERM (Program Electronic Review Management), came into use. PERM was intended to reduce Permanent Labor Certification times to under 60 days. However, PERM may be creating as many backlogs as it is intended to solve. Because of congressionally mandated annual quotas, there may not be enough visas available to grant green cards to everyone who is approved by PERM, which may have played a role in the retrogression of priority dates on September 13, 2005.

The standards used in making Permanent Labor Certification determinations under the PERM system would be based on:

1) whether there are not sufficient United States workers who are able, willing, qualified and available; 2) whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and 3) whether the employer has met the procedural requirements of the regulations.

The employer has the option of filing a PERM application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing faster, but it would also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

The employer must recruit under the standards for professional occupations, if the occupation involved is on the list of occupations, published in the PERM regulation, for which a bachelors or higher degree is a customary requirement.

For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a Permanent Labor Certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

Controversy

As with many immigration procedures, Permanent Labor Certification tends to be controversial. Its backers argue that it is a rigorous procedure for determining that only foreign workers who truly have skills needed by the U.S. labor market and not readily available locally are hired. Its critics, however, say that U.S. employers will first hire a foreigner on a long-term temporary visa, and then try to tailor the job description so that that foreigner is the only person who could possibly be hired - thus gaming the Permanent Labor Certification process to guarantee a favorable outcome. However, the job requirements, as described by the petitioning employer in the Permanent Labor Certification application, must represent the employer’s actual minimum requirements for the job opportunity. Those job requirements described on a Permanent Labor Certification application are reviewed and evaluated closely by the Department of Labor in accordance with the Code of Federal Regulations that sets forth the standards for determining the appropriate requirements for a job opportunity. Ultimately, the employer must prove that they have not hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.

Differences with labor condition application

Permanent Labor Certification should not be confused with the Labor Condition Application, the corresponding process for temporary work visas. The differences are presented in table form below:

AttributeLabor Condition ApplicationPermanent Labor Certification
Type of visaTemporary work visa: H-1B, H-1B1, or E-3Employment-based visa (such as EB-2 visa, or EB-3 visa) that provides a path to permanent residency (a Green Card)
Typical time for approvalLess than a week6-24 months
Burden of proofThe employer needs to demonstrate that the worker is being paid at least the prevailing wage for that region and occupation, and comparable to native workers in the firm, and that employing the worker will not adversely affect current workers. The employer does not need to demonstrate that there is no qualified native U.S. worker for the job.The employer needs to demonstrate that there is no qualified U.S. worker willing to do the job at a comparable wage, and needs to have made a good-faith effort to recruit a native U.S. worker.

Related Research Articles

<span class="mw-page-title-main">Green card</span> Lawful permanent residency in the United States

A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2023, there are an estimated 12.7 million green card holders, of whom 9 million are eligible to become United States citizens. Approximately 18,700 of them serve in the U.S. Armed Forces.

The H-1B is a visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H), that allows U.S. employers to employ foreign workers in specialty occupations. It is the largest visa category in the United States in terms of guest worker numbers. A specialty occupation requires the application of specialized knowledge and a bachelor's degree or the equivalent of work experience. The duration of stay is three years, extendable to six years, after which the visa holder can reapply. Laws limit the number of H-1B visas that are issued each year. There exist congressionally mandated caps limiting the number of H-1B visas that can be issued each fiscal year, which is 65,000 visas, and an additional 20,000 set aside for those graduating with master’s degrees or higher from a U.S. college or university. An employer must sponsor individuals for the visa. USCIS estimates there are 583,420 foreign nationals on H-1B visas as of September 30, 2019. The number of issued H-1B visas have quadrupled since the first year these visas were issued in 1991. There were 206,002 initial and continuing H-1B visas issued in 2022.

An L-1 visa is a visa document used to enter the United States for the purpose of work in L-1 status. It is a non-immigrant visa, and is valid for a relatively short amount of time, from three months to five years, based on a reciprocity schedule. With extensions, the maximum stay is seven years.

Priority date is a United States immigration concept – it is the date when a principal applicant first reveals his or her intent of immigration to the US government. For family-sponsored applicants, the priority date is the date an immigration petition, filed on behalf of him or her, is received by the United States Citizenship and Immigration Services (USCIS). For employment-based immigration beneficiaries, the priority date is the date an immigration petition is filed at USCIS, under categories where a labor certification is not required, or when the United States Department of Labor receives a labor certification application, under categories where a labor certification is required. In all cases, the priority dates are not established until USCIS approves the immigration petition. The date establishes one's place in the queue for a family-sponsored or employment-based or permanent residency permit application.

An H-2A visa allows a foreign national worker into the United States for temporary agricultural work. There are several requirements of the employer in regard to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. In 2015 there were approximately 140,000 total temporary agricultural workers under this visa program. Terms of work can be as short as a month or two or as long as 10 months in most cases, although there are some special procedures that allow workers to stay longer than 10 months. All of these workers are covered by U.S. wage laws, workers' compensation and other standards; additionally, temporary workers and their employers are subject to the employer and/or individual mandates under the Affordable Care Act. Because of concern that guest workers might be unfairly exploited, the U.S. Department of Labor Wage and Hour Division is especially vigilant in auditing and inspecting H-2A employers. H-2A employers are the only group of employers who are required to pay inbound and outbound transportation, free housing, and provide meals for their workers. H-2A agricultural employers are among the most heavily regulated and monitored employers in the United States. Unlike other guest worker programs, there is no cap on the number of H-2A visas allocated each year.

‍A guest worker program allows foreign workers to temporarily reside and work in a host country until a next round of workers is readily available to switch. Guest workers typically perform low or semi-skilled agricultural, industrial, or domestic labor in countries with workforce shortages, and they return home once their contract has expired.

The Security Through Regularized Immigration and a Vibrant Economy Act of 2007 or STRIVE Act of 2007 is proposed United States legislation designed to address the problem of illegal immigration, introduced into the United States House of Representatives. Its supporters claim it would toughen border security, increase enforcement of and criminal penalties for illegal immigration, and establish an employment verification system to identify illegal aliens working in the United States. It would also establish new programs for both illegal aliens and new immigrant workers to achieve legal citizenship. Critics allege that the bill would turn law enforcement agencies into social welfare agencies as it would not allow CBP to detain illegal immigrants that are eligible for Z-visas and would grant amnesty to millions of illegal aliens with very few restrictions.

A work permit or work visa is the permission to take a job within a foreign country. The foreign country where someone seeks to obtain a work permit for is also known as the "country of work", as opposed to the "country of origin" where someone holds citizenship or nationality.

<span class="mw-page-title-main">Wage and Hour Division</span> Federal office in the United States

The Wage and Hour Division (WHD) of the United States Department of Labor is the federal office responsible for enforcing federal labor laws. The Division was formed with the enactment of the Fair Labor Standards Act of 1938. The Wage and Hour mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation's workforce. WHD protects over 144 million workers in more than 9.8 million establishments throughout the United States and its territories. The Wage and Hour Division enforces over 13 laws, most notably the Fair Labor Standards Act and the Family Medical Leave Act. In FY18, WHD recovered $304,000,000 in back wages for over 240,000 workers and followed up FY19, with a record-breaking $322,000,000 for over 300,000 workers.

EB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States". Applicants must generally have an approved Permanent Labor Certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker with the USCIS.

The H-2B visa nonimmigrant program permits employers to hire foreign workers to come temporarily to the United States and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis.

EB-3 is a visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog may be longer. Unlike persons with extraordinary abilities in the EB-1 category, EB-3 applicants require a sponsoring employer. There is no "self-petition" category.

<span class="mw-page-title-main">Labor Condition Application</span>

The Labor Condition Application (LCA) is an application filed by prospective employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B, H-1B1 and E-3. The application is submitted to and needs to be approved by the United States Department of Labor Employment and Training Administration (DOLETA)'s Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035.

The American Competitiveness and Workforce Improvement Act (ACWIA) was an act passed by the government of the United States on October 21, 1998, pertaining to high-skilled immigration to the United States, particularly immigration through the H-1B visa, and helping improving the capabilities of the domestic workforce in the United States to reduce the need for foreign labor.

The H-1B Visa Reform Act of 2004 was a part of Title IV of the Consolidated Appropriations Act, 2005 in the United States that focused on changes to regulations governing H-1B visas. It was a successor to previous legislative changes affecting the H-1B, namely: the Immigration Act of 1990, American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, and the American Competitiveness in the 21st Century Act (AC21) of 2000. The Consolidated Appropriations Act was signed by George W. Bush, then President of the United States, in early December 2004.

<span class="mw-page-title-main">Form I-140</span> I-140, Immigrant Petition for Alien Worker

Form I-140, Immigrant Petition for Alien Worker is a form submitted to the United States Citizenship and Immigration Service (USCIS) by a prospective employer to petition an alien to work in the US on a permanent basis. This is done in the case when the worker is deemed extraordinary in some sense or when qualified workers do not exist in the US. The employer who files is called the petitioner, and the alien employee is called the beneficiary; these two can coincide in the case of a self-petitioner. The form is 6 pages long with a separate 10-page instructions document as of 2016. It is one of the USCIS immigration forms.

The term H-1B-dependent employer is used by the United States Department of Labor to describe an employer who meets a particular threshold in terms of the fraction of the workforce comprising workers in H-1B status. An employer classified as H-1B-dependent needs to include additional attestations in the Labor Condition Application used for the petition of any H-1B beneficiary being offered an annual compensation of less than $60,000 and without a master's degree. The notion was introduced by the American Competitiveness and Workforce Improvement Act (ACWIA) passed in 1998 and operationalized through the United States Department of Labor's Interim Final H-1B Rule of December 20, 2000. The regulation is found in 20 CFR 655.736 in the Code of Federal Regulations.

A National Interest Waiver is an exemption from the labor certification process and job offer requirement for advanced degree/exceptional ability workers applying for an EB-2 Visa for Immigration into the United States.

A public access file is a file that needs to be maintained by any United States employer hiring people in H-1B, H-1B1, or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs, for example. It is distinguished from a private access file that contains more sensitive and confidential employee data that must be shared with the U.S. Department of Labor if they choose to investigate. Regulations governing the public access file can be found in the Code of Federal Regulations, Title 20, or more specifically, in 20 CFR 655.760.

The H-1A visa was a visa that was previously available to foreign nationals seeking temporary employment in the United States. These visas were made available to foreign nurses coming into the United States to perform services as a registered nurse in areas with a shortage of health professionals as determined by the Department of Labor. The creation of this visa was prompted by a nursing shortage.

References

  1. ↑ "Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category". Employment-Based Second Preference Immigrant Visa Category. USCIS. 2011-08-02. Archived from the original on 21 December 2013. Retrieved 27 August 2012.
  2. ↑ "Definition: United States worker from 8 USC § 1182(t)()(4) | LII / Legal Information Institute". www.law.cornell.edu. Retrieved 2024-06-19.
  3. ↑ "Green Card Tracker Based on USCIS and DOS Data".
  4. ↑ "Prevailing Wages | Flag.dol.gov". flag.dol.gov. Retrieved 2024-06-17.
  5. ↑ "Green Card Through PERM Roadmap – Curran, Berger & Kludt". cbkimmigration.com. Retrieved 2024-06-17.
  6. ↑ "20 CFR § 656.17 - Basic labor certification process". LII / Legal Information Institute. Retrieved 2024-06-18.
  7. ↑ "Processing Times | Flag.dol.gov". flag.dol.gov. Retrieved 2024-06-17.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.