Overview

The labor certification procedure is intended to assure 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. If the labor certification procedure locates any U.S. workers who meet employer's minimum requirements (education, experience, training) for the position, the application to obtain permanent residence for the alien employee will not be approved.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified, available, willing and able, although it will not force the employer to hire such 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 DOL requires 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 should that applicant also be available, able and willing. Further, the DOL will consider a

candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. This requirement 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 first step before filing the PERM labor certification application is obtaining a prevailing wage from the SWA (State Workforce Agency). The employer must pay at least 100 percent of the prevailing wage offered in the area of intended employment.

The PERM labor certification application is the first stage of employment-based, legal permanent residency (“green card”) for certain foreign nationals.

Are you an employer seeking to hire a foreign professional? Attorney Monique Kornfeld will guide you through the complicated and time-sensitive PERM process. Call 617-323-5049.