Honolulu, Hawaii Lawyer Helps Employers and Employees with the Labor Certification Process

It is important for the United States to ensure that U.S. workers are not displaced from U.S. jobs by foreign workers. Therefore, for many foreign nationals who are seeking to enter the United States on a permanent basis through an offer of employment, their U.S. employer must first show that there are no U.S. workers who are willing, able and qualified to perform the duties of the job being offered to the foreign national. This process is called the labor certification or “PERM” process. Foreign Nationals who are seeking immigrant visas through the EB-2 and EB-3 immigrant visa categories are required to go through the labor certification process unless they are able to obtain a “National Interest Waiver”.
The EB-2 category is reserved for those applicants who have an offer of employment which requires a Master’s degree or higher or its equivalent while the EB-3 category is for all other types of positions which could range from those requiring at least a bachelor’s degree to those requiring minimal skills. In the past, the difference between the EB-2 and the EB-3 category is how long the waiting period is before the Foreign National is able to qualify for lawful permanent residency status in the United States. With the exception of India and China, in the last several years with minor exceptions, a person who qualifies under either the EB-2 and EB-3 process has been eligible to apply for lawful permanent residency status almost immediately after they complete the labor certification process. However, since the timing is based on the availability of immigrant visa numbers, if there is large demand for immigrant visas, those in the EB-3 category might have to wait one or two years before he/she could apply for lawful permanent residency status in the U.S.
As described above, the labor certification process is required to ensure that the employer conducts a fair test of the labor market to determine that there are no U.S. workers who are willing, able and qualified for the job being offered by a U.S. employer. The labor certification process is conducted by the U.S. Department of Labor. There are three primary steps to the labor certification process:
  1. Prevailing Wage Determination.  The U.S. Employer is required to pay the Foreign National the “prevailing wage” for the job offered.  In order to determine what the prevailing wage for the job offered is, the U.S. employer must file a Prevailing Wage Determination request with the U.S. Department of Labor.  This request must contain not only a detailed description of the job offered but also must list the minimum education, experience and skills required for the job.  The U.S. Employer must be willing to pay the wage/salary determined to be the prevailing wage by Department of Labor.  If the wage determined by the Department of Labor is too high, the employer has the option of decreasing the minimum requirements (which may change the job offer from an EB-2 case to an EB-3 case) or not proceeding with the labor certification.
  2. Recruitment Phase. If the U.S. Employer is willing and able to pay the prevailing wage for the job, the employer must then engage in recruitment for the position.  The recruitment for all positions must include (a) posting the position on the premises of the U.S. Employer’s place of business for ten (10) business days, (b) posting of the position with the unemployment office of the state in which the job will be located for a period of thirty (30) days and (c) posting of the position in two (2) Sunday newspapers of general circulation.  For professional positions, the employer must also use three (3) other recruitment sources.  The employer must consider all U.S. workers who apply for the job offered in a timely manner.  The employer can only reject applicants for objective and lawful job related reasons.  In general this means that U.S. workers can only be rejected if they do not meet the minimum requirements listed in the prevailing wage determination issued by the U.S. Department of Labor.  If there is at least one U.S. worker who cannot be rejected, the employer cannot proceed with the labor certification process. See the attached list of “General Guidelines” during the recruitment.
  3. The PERM Application.  If, after engaging in recruitment, the U.S. Employer is unable to find a U.S. worker who is willing, able and qualified for the position, the U.S. Employer can prepare and file the Application for Permanent Employment Certification (Form ETA 9089) which is often called the “PERM Application”.  The PERM Application is filed electronically with the U.S. Department of Labor.  The U.S. Department of Labor may either certify (“approve”) the PERM Application or it may issue an Audit Notice requesting that the U.S. Employer prove that it has engaged in the recruitment efforts as required.
After the PERM Application has been certified by the U.S. Department of Labor, the U.S. Employer can then file an immigrant petition on behalf of the Foreign National for either the EB-2 immigrant visa category (if the minimum requirement for the position is a Master’s degree or higher) or the EB-3 immigrant visa category (for positions with lesser requirements). The Law Offices of KahBo Dye-Chiew in Honolulu helps employers and their prospective professional workers navigate the labor certification process for immigrant visas.

There may still be change to come for employment-based visa applicants

In June 2013, the U.S. Senate passed S.744, an immigration reform bill. The bill has sparked much debate around the world and is still in review. However, it demonstrates the importance of a global workforce and the reality of constantly changing immigration laws and processes. If the new bill passes, it brings certain changes to the Employment Based Immigrant visa categories.
Over time, country-specific limits may be lifted, giving foreign professionals with advanced degrees or exceptional ability from countries such as China and India equal access to employment based immigrant visas. In addition, anyone eligible for the EB-2 visa who has an advanced degree from a U.S. university would not be subject to any cap and would not have to file a labor certification.
Kahbo Dye-Chiew

Contact a skilled immigration attorney in Honolulu and find out which visa category applies to you

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