The PERM labor certification is the first of three major steps in the employment-based green card process. The way that the PERM labor certification is prepared and drafted sets the stage for the rest of the process. The way this application is drafted dictates the employment-based category your I-140 petition will fall into (EB-2 vs. EB-3), whether you can document all the requirements and have the I-140 petition approved, and more. Here are five tips for a successful and stress-less PERM process!
- Plan ahead! The PERM process takes months to prepare, and then months for DOL to process the application (currently 7-8 months). Most of the time, our clients want the PERM process completed as soon as possible - either because they want the green card approved as soon as possible to meet their personal and professional goals (and this is the required first step), or because they need the I-140 petition approved to be able to extend their H-1B status beyond the 6th year.
- Set clear minimum job requirements: Remember the minimum requirements for the position are set by the employer, not the employee, and not should not be tailored to what the foreign national employee has. A good starting point can be the employer's standard job description for the position, or previous job postings (ads) for the position. In addition, the requirements must be clear and specific. For example, a requirement of 3 years of experience in X occupation is acceptable. However, if the employer says that 3-5 years experience is required, the "true minimum" would be 3 years.
- Make sure the foreign national employee meets all requirements for the position. At the I-140 petition stage of the process, we will have to document that the foreign national employee has all required education, experience, and special skills (if applicable). The foreign national employee must be able to document their experience with letters of experience from previous employers. In real life, often an employer will make hiring decisions based on a number of factors, and some "requirements" may be fluid. Unfortunately, that won't work in the PERM context. For PERM, the employer must have clear, fixed requirements, and the foreign national must be able to clearly document that they meet those requirements. With certain exceptions, a foreign national cannot use experience gained with the sponsoring employer.
- Confirm ability to pay. Part of the PERM labor certification preparation process is obtaining a prevailing wage determination from the DOL. We submit a carefully prepared form to the DOL, and they determine the required wage for the position (prevailing wage) based on the job title, job duties, position requirements, and geographical location. The employer doesn't have to pay the prevailing wage until the foreign national receives their green card, but they do have to document that they have the ability to pay the prevailing wage as of the time that the labor certification is filed and going forward. If the employer cannot document this at the I-140 stage, the I-140 could be denied, and the employer may need to start all over.
- Work with qualified immigration law professionals and help them help you! The PERM process is incredibly nuanced, complex, and riddled with potholes and hurdles. Work with a qualified immigration lawyer who has substantial experience with this particular type of filing. When you start working with them, keep the lines of communication open, don't be afraid to ask questions to make sure you have a clear understanding of what's happening, and send them the information they request as soon as possible to keep the process on track and moving quickly.
As always, the above information is for educational purposes only and is not legal advice. Please speak with a qualified immigration lawyer before taking action. If you need help navigating the immigration process with confidence, please contact us today to get the process underway! We are immigration lawyers in Richmond, VA but we serve clients throughout the US and around the world. You can call us at 804-396-3412 or send us an email at email@example.com. We look forward to hearing from you!