PERM Labor Certification

With limited exceptions, the filing of immigrant visa petitions for Second and Third preference employment-based immigrants must be based on an approved labor certification from the United States Department of Labor (DOL). At Rabinowitz & Rabinowitz, P.C., our mission is to support the employer at all stages of the PERM labor certification process, and to assist the employer’s human resource professionals in navigating the smoothest path through the multi-step process. We know that all employees involved in the recruitment and hiring of key personnel have other responsibilities beyond the PERM labor certification process. In supporting employers and human resource professionals, we begin with a comprehensive case assessment focusing on the employer’s requirements for the position and the prospective employee’s academic and work history, strategically draft the application, guide the employer through the required recruitment steps, advise the employer regarding the documentation of recruitment and results, ensure that all predicate activities have been attended to, and submit the PERM labor certification application to the DOL.

At Rabinowitz & Rabinowitz, P.C. our Dallas, Frisco, and North Texas immigration attorneys are committed to delivering cost-effective service that respects personal finances and the corporate bottom line. If through our comprehensive, front end analyses of employment-based immigrant visa options for every case, we determine that the employer, employee and in some cases even a self-petitioner can benefit from a immigrant visa petition filing exempt on some basis from labor certification requirements, we delight in pursuing representation on this basis which can provide an even smoother and more timely path to lawful permanent resident (Green Card) status in the U.S.

PERM labor certification requirements

In those cases in which a PERM labor certification is required, employers must demonstrate and in turn DOL must certify that with respect to the full-time, permanent position to be filled by the prospective immigrant, there is no U.S. worker who could be found who is able, willing, qualified and available to assume the position in the area of intended employment. The requirements for the position must be customary to the occupation. The legal focus is on the actual minimum requirements for the position, and the requirements may not be tailored to the prospective immigrant’s academic or work experience. Restrictive requirements are suspect, unless they can be shown to arise from business necessity. Employers must also demonstrate that the employment of the prospective immigrant will not have an adverse effect on the wages and working conditions of U.S. workers who are similarly employed. Employers may not pay less than the prevailing wage for the position in the area of intended employment.

Employers demonstrate unavailability of U.S. workers by performing an active test of the U.S. labor market which involves notification placed with a state agency and multiple recruitment steps through the employer’s own independent efforts. Recruitment for professional occupations involves the placement of a job order with a State Workforce Agency and print advertisements. In addition to these two mandatory recruitment steps, employers recruiting for professional positions must take three of ten listed additional steps for recruitment. The correct timing of recruitment steps is critical. At the end of the recruitment period, employers must prepare a recruitment report which includes the lawful, job-related reasons for which any U.S. workers were rejected, and employers must maintain the supporting documentation relating to the recruitment. Some PERM labor certification applications are selected for audit by DOL.

While a PERM labor certification certainly can be a satisfactory path to establishing a predicate for eligibility for employment-based Second and Third preference eligibility, it is also advisable for prospective employers to consider other paths to employment-based immigrant visa classification which do not require PERM labor certification.

Other paths to employment-based immigrant visa classification

Employers have both statutory and regulatory options for other paths to employment-based immigrant visa classification which do not require PERM labor certification. Positions for certain nurses, physical therapists, and persons of extraordinary ability in the sciences and arts are exempt from recruitment and the test of the U.S. labor market. Recruitment efforts and hiring decisions for positions for college and university teachers may be predicated on a search for the “more qualified” applicant and not just an applicant meeting minimum requirements.

Outside of PERM labor certification concerns entirely are immigrant visa petitions for individuals who would qualify as EB-1 priority workers. Included in this classification are persons of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers with international recognition; and multinational executives and managers. Some EB-2 advanced degree holders or persons of exceptional ability may be exempt from labor certification by reason of an approved national interest waiver of the job offer requirement. In support of a national interest waiver request, an applicant must show that he or she plans on working in the U.S. in an area of substantial intrinsic merit; that the proposed impact of his or her work is national in scope; and that waiving the labor certification requirement would benefit the national interests of the U.S.