Through the labor certification process

The H-1B status that allows your employee to work for you is temporary. You may extend the H for up to six years. However, absent filing a labor certification or other means of extending/obtaining work authorization, the employee will have to leave employment when s/he has reached the limit of six years in H status. Alternatively, if you are eligible, you may file a labor certification on behalf of your employee. If certified, your employee will be able to start the process towards permanent residency.

+ Timeframe

If you are interested in filing a labor certification you should start as soon as possible. You should not wait until your employee has finished his or her six years in H status. As the filing of a labor certification does not provide work authorization, your employee must have ample time left in H status to carry him or her through the labor certification process.

+ Basic information about the labor certification

The purpose of the labor certification process is to ensure that the employer is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that the employer has not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers. To meet this goal, the employer must advertise for the position based on the minimum requirements for the position.

If the labor certification process locates any U.S. worker who meets the minimum requirements (education, experience, training) for the position, the employer will not be permitted to obtain permanent residence for the foreign employee through the PERM process.

The purpose of the US Department of Labor (“DOL”) in this process is to protect US workers. To this end, the DOL is concerned with qualified US workers being shut out of positions that are being filled by foreign workers.

+ Obtaining Permanent Residency

There are three general steps to obtaining permanent residency through the filing of a labor certification. First, the employer must submit a labor certification application to the Department of Labor (“DOL”). The filing of the labor certification locks in the priority date. If this application is approved, the employer submits a petition (Form I-140) to the US Citizenship and Immigration Services (“USCIS”). Once the employee’s priority date is current, s/he will be able to file an application with the USCIS for permanent residency (Form I-485).

There are two main requirements for the labor certification. First, there must be a bona fide job opening. Second, the employer must demonstrate that there are no qualified US workers who meet the minimum requirements for the position. If the employer tests the market and finds no qualified US workers, but the DOL determines there was no bona fide job opening, the labor certification will be denied.

The DOL requires that the employer be willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such a worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating U.S. job applicants; because that participation gives the appearance that a fair test of the labor market is not contemplated.

The requirement that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job's minimum requirements.

+ The Process

Under PERM, the employer must undertake recruitment prior to the submission of the labor certification. The employer will prepare a recruitment report but will not submit it to the DOL. Rather, the employer will maintain the recruitment report along with other documentation supporting the labor certification application to make available in the event of an audit. The application will be submitted electronically. The DOL will select applications to be audited either randomly or based on answers to questions on the form.