Ten Common Myths About the Labor Certification Process
Employment-based immigration to the United States generally entails a three-step process: 1) Labor Certification (under the “PERM” program); 2) Immigrant Visa Petition approval; 3) Green Card issuance (or Consular Processing, if abroad).
As many of our readers know, PERM labor certification consists of a series of recruitment activities to test the job market. If no qualified and willing U.S. candidates are found, the PERM application can be filed. Once the application is filed, the timeline until a successful Green Card is obtained varies significantly: from less than one year for certain advanced degree professionals, to eleven years for other workers.
Because much can happen during and after the filing of the PERM application, and because the recruitment process involved in obtaining a labor certification can be confusing, there are many incorrect beliefs surrounding labor certifications. Below are ten common myths our Law Office encounters:
1) Filing for labor certification allows the beneficiary to work
Submitting the application is merely the first step—think of it as the foundation—of a prospective Employment Green Card case. It does not provide the any immediate legal status or work authorization.
2) The beneficiary is required to work for the employer upon filing
The Green Card process for workers is a prospective process, which requires a prospective (future) job offer. The process does not require the beneficiary to be currently employed for the employer. Neither the location of the beneficiary nor their current work status generally affect the adjudication of a labor certification application.
3) A start-up company does not qualify for the labor certification process
Start-ups and small companies can submit labor certifications despite their size and number of employees. While profitability is not a requirement, the company must show that it has the ability to pay the proffered wage upon the filing of the labor certification application.
4) A company experiencing financial distress does not qualify for the labor certification process
Financial distress notwithstanding, there are several ways that a company can meet its obligation to show that it has the ability to pay the beneficiary from the date of filing of the labor certification: 1) net Income; 2) net assets; or 3) proof of actual wages paid to the beneficiary equal or higher than the prevailing wage, if employed.
5) Employer must pay the prevailing wage upon Labor Certification filing
Remember, there is no requirement that the beneficiary be employed upon labor certification filing. The labor certification process is filed for a prospective job, thus the employer must pay equal or higher than the prevailing wage only when the beneficiary receives permanent residency. Naturally, if the beneficiary is in the U.S. pursuant to H-1B status, receipt of the prevailing wage or higher from the H-1B employer is required to properly maintain status.
6) Labor certification will be denied if recruitment requires a foreign language
Foreign language skills do not always need to be eliminated from job requirements. Although job requirements that are tailored to a specific beneficiary’s qualifications are not permitted, where business needs reasonably justify the language requirement, it may be deemed acceptable. For example, requiring an Arabic language teacher to speak Arabic, or an IT solutions company with most of its developers in Russia to speak Russian may be acceptable.
7) The labor certification’s beneficiary can help out in the recruitment steps
A beneficiary cannot assist the employer in recruitment efforts, such as by reviewing resumes or interviewing applicants. Doing so is contrary to the Department of Labor’s rules.
8) Filing a labor certification disqualifies the beneficiary from future Visitor Visas
The filing or approval of an application for labor certification will most likely not have an adverse effect on future nonimmigrant visa applications. Nonimmigrant visa applications omit questions regarding the filing of a labor certification—but do ask about the filing of an I-140 immigrant visa petition. Thus, while nonimmigrant visa applications are unlikely to be adversely affected by pending labor certifications, a pending immigrant visa petition may result in a finding of immigrant intent.
9) Unused certified labor certifications are useless
There are a number of valid reasons for why a particular certified labor certification might no longer be eligible for employment sponsorship with the original employer: the job offer might no longer exist; the certification may have expired; or the employer may have stopped operations, among others. It is important to remember that even in such situations, the labor certification may still be very useful. For example, where a labor certification was used to support an approved immigrant visa petition, a subsequent petition might be able to retain the earlier labor certification’s priority date. Additionally, meritorious labor certification applications filed prior to April 30, 2001 may result in eligibility to adjust status under Section 245(i) of the Immigration and Nationality Act (INA).
10) If the company is restructured or purchased, the labor certification dies
If the new company is willing to accept the liabilities and obligations of the seller-company, the principles of successor-in-interest may apply, and the new company may be able to continue the labor certification/green card process.