Both the EB-2 and EB-3 Visa require that the Employer undergo the PERM Labor Certification Process (An exception can only be made with a National Interest Waiver) to obtain a labor certification in order to apply for the EB-2 or EB-3 visa. The PERM Labor Certification process is where the U.S. Department of Labor (DOL) requires the employer to “test the market” to prove there are no willing or qualified U.S. workers for the position.
Corporate Requirements for PERM
Employer must demonstrate that:
- The owner of the corporation is not related to foreigner;
- The position is normal for their business and industry;
- The position requires the education and/or experience stated in the job description;
- The company has the ability to pay the wage as set by the US DoL through the Prevailing Wage Determination; and
- The company properly recruited for a US worker for the position.
PERM Employer Steps
Job Description– The Employer must create a job description for the position that includes duties, requirements, location where work is to be performed, and any travel and/or language requirements.
Prevailing Wage Request– Once the job description is completed, the Employer submits a Prevailing Wage Request to the US DoL to obtain the ‘going rate’ for the position. The employer must pay at least that amount.
Recruitment– Once the Prevailing Wage is received, the Employer must actively attempt to recruit a US worker for the position for at least 30 days.
For non-professional positions, employer must advertise the position on:
- The State Workforce Agency (SWA); and
- Two newspapers of general circulation, including one Sunday.
For professional positions, the Employer must also advertise in at least three of the following ways:
- Job fair;
- Job search website;
- Employers website;
- Professional journal;
- List the job with a recruiting firm;
- Employee referral program;
- On-campus recruitment;
- On-campus placement office;
- Ethnic newspaper; and
- Radio ad.
There are time sensitive guidelines that must be met with both the prevailing wage, the advertisements, and the time in which recruitment is completed.
Recruitment Report– It is critical that the Employer conducts and records all actions taken during the recruitment component of the labor certification process in the case of an audit. The Employer will be required to submit a recruitment report with copies of the job advertisements, as well as any CV’s and applications received for the positions. The recruitment report must also document how and when the Employer contacted any applicants who appeared to be qualified, and the basis upon which the employer decided they were not actually qualified for the position.
If a qualified worker applies for the position, the PERM process is halted for at least six months, although the employer is not required to hire that person to fill the position.
If no qualified worker applies for the position, the Employer files the PERM application online, and waits to receive the Labor Certification.
I-140 Petition– Once the Labor Certification is received, the Employer files an I-140 petition to set aside a visa number for the employee. The petition must demonstrate that the Employer is able to pay at least the wage as set by the US DoL, and must show the employee’s qualifications.
The Perm Labor Certification Process is nuanced and requires careful completion. To learn more about the Perm Labor Certification Process for the EB-2 and EB-3 Visas in depth, please contact us.