The Complete Guide to PERM Labor Certification

The Complete Guide to PERM Labor Certification

Are you in the process of immigrating to the U.S.? Have you already been in contact with a U.S. employer, but are wondering about the process of being employed full time? Read on to find out more information about the PERM Labor Certification, what it means, and why it is required.

What Is PERM Labor Certification?

The PERM (Program Electronic Review Management) Labor Certification process is used by U.S. employers to get prospective foreign employees (in other words yourself) pre-cleared by the Department of Labor (DOL) and eligible for an immigration petition (the process of applying for a visa).

Basically, the U.S. Citizenship and Immigration Services (USCIS) first wants to know that the DOL is happy about the fact that you are coming to work in the U.S. The PERM Labor Certification process informs the USCIS that you aren’t taking a job from an American who needs it. This process is used to protect the U.S. labor market from being affected negatively by foreign nationals.

PERM Labor Certification Process

The big positive in this whole process is the fact that you aren’t responsible for filing your own Labor Certification. Now that you know about it you should make sure the process is followed by your potential employer. It is, however, still their responsibility to make sure you get your certification approved.

The PERM Certification

To start the process, your potential employer files a certification application with the DOL. They first need to fulfill a recruitment period in the U.S. to see if there are any U.S. citizens who should first be considered for the position. The minimum expected time for the recruitment process is around 60 days.

Your employer will then apply for the certification if no suitable U.S. candidates have been found. The DOL then needs to review the process followed by the U.S. employer. Given the nature of the process and documentation, it may take longer than a year for the DOL to adjudicate the matter.

This certification requires two predominant steps to be fulfilled before the application can be filed. Let’s have a look.

1. U.S. Labor Market Test

The employer must first test the U.S. labor market to see if there are any willing, able, qualified, and available U.S. citizens who want the job before it is offered to a foreign national. The employer needs to advertise the position and review CV’s for 30 days before they file your certification (this period should be fewer than 180 days).

2. Prevailing Wage Determination

The employer must offer the prevailing wage for the advertised position. The DOL determines the prevailing wage for the specific type of job. The prevailing wage needs to be acquired from the DOL before this process starts.

I-140 Employer’s Application / Proof of Ability to Pay

Once the certification has been approved by the DOL, the employer has 6 months to file an I-140 immigration petition. The employer needs to prove they are able to pay the prevailing wage and that you possess the experience, education, and skills required in the PERM.

It is the employer’s responsibility to file your I-140. They also pay the processing fees. They can pay an additional $1,225 filing fee to speed up the processing of your application. Just note, these fees may be passed on to you on a payback agreement if you leave this employer within too short a time period. If you are a non-resident Indian you can consider an NRI loan (which only requires a soft credit check) to help you repay these fees if you find yourself in a situation without the necessary funds.

Adjustment of Status

The last step before you can become a permanent resident is the Adjustment of Status process. The filing for this process is dependent on your situation and whether you are in the U.S. or abroad (filing at a U.S. consulate or embassy). There are different criteria that need to be fulfilled for people from different countries and in different jobs.

The main criterion is that you have lived in the U.S. on a visa for a minimum amount of years (even up to 10 years). You need to have made at least one legal entry into the U.S. In some cases, you are required to be employed in the same field since the day you immigrated to the U.S.

The filing fees for an Adjustment of Status can be up to $1,070 per person. It’s probably best if you consult immigration attorneys to help you through this process. There are loans for foreign nationals available in the U.S. to help cover these fees, even if you are an H1B visa holder.

PERM Labor Certification FAQs

The filing for a PERM Labor Certification has some things to be aware of. Here are some of the most frequently asked questions about the PERM labor certification.

How Do I Appeal a DOL Decision?

An employer has three ways to appeal the decision made by the DOL:

  1. Request for reconsideration pursuant to 20 CFR656.24(g)(1).
  2. Request for review before the Board of Alien Labor Certification Appeals (BALCA), pursuant to 20 CFR 656.26(a).
  3. Request for Reconsideration based on alleged DOL error.

Choose the basis of your appeal and include it in the way you present your appeal on your cover letter.

How Do I Request a Reconsideration on My Appeal?

When you ask the National Processing Center (NPC) for a reconsideration you need to specifically mention “Reconsideration” on the cover letter of your appeal. If you don’t mention the appeal you sought the NPC will automatically assume a reconsideration.

My Application Was Denied Due to Errors. How Do I Correct It?

Under the following circumstances, you are allowed to appeal and ask for reconsideration by making corrections to errors within 30 days of the date of issuance of the denial.

The denied application may only be appealed by correcting errors if the missing information is due to typographical errors or oversight of information and only if there is sufficient proof of information or documentation valid at the time of the initial application. If the Certifying Officer (CO) upholds the decision they’ll send the appeal to BALCA. If they overturn it they will process the application according to procedures.

What Happens to My Appeal if the NPC Upholds Their Decision of Denial?

The appeal is automatically forwarded to BALCA for review. The NPC will send the appeal to BALCA and a copy to the employer.

May I File a Reconsideration Before the NPC and BALCA?

A cover letter that asks for both reconsideration from the NPC and BALCA will first be processed by the NPC. After they uphold their decision they’ll send it to BALCA.

How Will I Know If My Case Is Forwarded to BALCA?

The DOL will mail the employer notification of the upholding of the denial. It will also inform the employer the case has been forwarded to BALCA.

How Do I Only Get BALCA to Review My Appeal?

Expressly use the term “request for review” on your cover letter to inform the NPC that you only want BALCA to review your appeal.

The NPC Upheld Their Decision of Denial. Do I Need to File a Newly Classified Appeal to BALCA?

No. Once the appeal is in the request for reconsideration process it remains there. The NPC will send it for review to BALCA once they uphold the decision.

How Do I File a Department Error Appeal?

There are many ways in which the DOL may have made an error. From data entry errors to a denial based on a failure to respond on an audit (when you have proof that you have responded to the audit). Use a brightly colored cover sheet stating the appeal for the denial based on the error made by the DOL. The appeal will go to the errors appeal queue.

What Happens If the Department Say It Wasn’t their Error?

If for some reason the DOL says they did not commit an error, they will place the appeal in the queue for Reconsiderations and process it accordingly.

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Conclusion

Your employer needs to file for PERM Labor Certification before they can file for your immigration. It is used to protect the U.S. job market from being exploited. It also stops employers from getting cheap foreign labor. PERM Certification for the position you want will help you, as a foreign national, gain lawful access to the U.S. as an immigrant. So make sure your employer gets the process going as soon as possible!

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