PERM Labor Certification in NYC: An Employer’s Guide

Seeking to sponsor a foreign worker for a green card through employment? Understanding the PERM (Program Electronic Review Management) labor certification process is crucial, particularly if your business is based in New York City or the tri-state area, although we represent employers throughout the United States. Serving as a mandatory initial step for numerous employment-based green card applications, PERM necessitates meticulous attention to detail. While the process can indeed be intricate, collaborating with a seasoned New York City immigration attorney can significantly streamline the procedure, thereby optimizing your prospects for a successful outcome. We have been successfully assisting employers with employment-based green cards for over thirty years.

 

What is PERM Labor Certification?

PERM (Program Electronic Review Management) labor certification is a critical step in the employment-based green card process, overseen by the U.S. Department of Labor (DOL).  The DOL’s role is to protect the U.S. labor market. Through PERM, they verify two key points:

• No Qualified U.S. Workers:  Despite good-faith recruitment efforts, your company has been unable to find a willing, able, and qualified U.S. citizen or permanent resident to fill the open position.
• Prevailing Wage Protection:  The salary offered to the foreign worker meets or exceeds the prevailing wage for that specific job title, experience level, and location. This prevents employers from using foreign workers to undercut wages in the U.S. job market.

 

Why Seek PERM Labor Certification in NYC?

Here’s a breakdown of why it’s essential:

• Mandatory for Most Employment-Based Green Cards: PERM is a requirement for the majority of employment-based green card categories.  Certain limited exceptions exist, such as for individuals with extraordinary abilities or those qualifying for a National Interest Waiver.
• Demonstrates a Legitimate Need: The PERM process helps protect the U.S. labor market while affording businesses the ability to have qualified workers. By conducting recruitment as per Department of Labor standards of a qualified U.S. worker, you demonstrate to the U.S. Citizenship and Immigration Services (USCIS) that there does not exist a willing, qualified and able applicant in the market for the position.  
• Prevents Wage Undercutting: The prevailing wage requirement ensures that the foreign worker’s salary aligns with the standard for that occupation and location. This protects all workers in that field by preventing employers from offering artificially low wages to attract foreign labor.
• Path to Permanent Residency: While a complex step, successful PERM approval is a significant milestone towards your foreign worker obtaining a green card. This allows them to live and work permanently in the United States, potentially offering your business long-term stability.

 

 

Steps Involved in PERM Labor Certification Process in NYC

1. Pre-filing Preparation

• Job Requirements: Define the job duties and minimum requirements for the position meticulously. Ensure the requirements are justifiable based on business necessity and avoid overly tailored descriptions that might exclude qualified U.S. workers.
• Prevailing Wage Request: Submit a prevailing wage determination (PWD) request to the DOL, determining the minimum salary you must offer for the position. The DOL uses a specific methodology to calculate the prevailing wage, taking into account factors like job experience requirements, location, and industry.

2. Recruitment

• Mandatory Advertisements: Place job ads in accordance with DOL regulations, including Sunday newspaper editions, a state workforce agency job posting, and internal company postings for a minimum of 30 days.  
• Additional Recruitment (if needed): Depending on the job’s nature, the DOL may require additional recruitment steps such as advertisements in professional journals, websites, or radio ads. Your immigration attorney will help determine if these are necessary and the best venue for such recruitment.
• Recruitment Report: Maintain meticulous documentation of the entire recruitment process, including responses to candidates which must conform to DOL standards. This includes copies of all advertisements, records of all applications received, and detailed reasons for disqualifying any U.S. applicants. Disqualification of potential applicants must focus on failure to meet objective job requirements.

3. Filing the PERM Application

• ETA Form 9089: Once the recruitment period ends, and if no qualified U.S. workers are found, you can file the PERM application (ETA Form 9089) with the DOL electronically.  There are strict time restraints for the recruitment process and filing the PERM.
• Supporting Documentation: Be sure to maintain all supporting documents and proof of your thorough recruitment efforts to assure the viability of the application as well as evidence demonstrating your company’s financial ability to pay the offered wage.

4. DOL Processing and Audit

• Processing Time: PERM processing times vary. Monitor your case status closely for potential DOL audit requests, which may require additional information.
• Audit Response: If audited, work closely with your NYC immigration attorney to provide the requested documentation promptly. Common audit requests include further detailing recruitment methods or asking for proof of a company’s financial standing.

5. Approval or Denial

• Approval: Upon approval, you can proceed with filing the I-140 Immigrant Worker Petition with USCIS on behalf of your employee to begin the green card process.
• Denial: If your PERM is denied, your attorney can analyze the reasons and potentially appeal or re-file it if necessary.

 

 

Time Considerations

The PERM labor certification process in NYC can be lengthy, and it’s critical to understand the various factors influencing potential timelines:

• Prevailing Wage Determination (PWD): Obtaining the PWD from the DOL can take a number of months. Plan accordingly, as you can’t initiate recruitment until you have this wage determination.
• Recruitment Period: The mandatory recruitment requires some of the recruitment efforts to be active for a minimum of 30 days.  The entire recruitment period often extends further.
• DOL Processing: PERM processing times fluctuate. It’s essential to monitor your case status closely. Current processing averages can be found on the DOL website.
• Potential Audits: Being selected for an audit adds further time. Your NYC immigration attorney will guide you in promptly compiling documentation to minimize audit-related delays.
• Priority Dates: Even with a PERM approval, the next step (filing the I-140 Immigrant Worker Petition) is impacted by visa backlogs and priority dates. This is where consulting with your attorney on the overall green card strategy is essential.

 

Why Start Early?

In addition to avoiding delays due to the foreign worker’s potential visa expiration, starting the PERM process early provides several advantages:

• Time to Address Issues: If you encounter challenges in the recruitment process, face an audit, or need to revise your job requirements, an early start provides a buffer. This allows you to work with your attorney on finding solutions or making adjustments without the pressure of a looming visa expiration deadline.
• Changing Requirements:  Immigration regulations and processing times are subject to change. Initiating the process early helps mitigate the risk of your case being significantly impacted by unexpected policy shifts or processing delays.
• Strategic Planning: PERM is just one step in the overall green card process. Starting early allows time for your immigration attorney to map out a broader timeline, including factors like visa backlogs and priority dates, for a smoother experience.
• Peace of Mind: Knowing that you’ve taken proactive steps in the PERM process reduces stress and uncertainty. This allows you to focus on growing your business and supporting your foreign workers through the immigration process.

 

Partnering with Oltarsh & Associates, P.C.

Navigating the complexities of PERM in NYC, the tri-state region as well as throughout the United States can be daunting for employers. At Oltarsh & Associates, P.C., we bring decades and extensive experience in employment-based immigration to guide you seamlessly through the process. Our attorneys provide strategic guidance at every step, including assisting with accurate job requirement definitions, ensuring a compliant recruitment process, preparing strong prevailing wage requests, meticulously compiling and filing your PERM application, and handling potential audits and appeals.

Don’t jeopardize your sponsorship goals. Contact Oltarsh & Associates, P.C. today for a consultation on PERM labor certification in NYC and the tri-state area. Let us help you secure the talent your NYC business needs to thrive.