One of the major steps in sponsoring a foreign national for work in the U.S. is the labor certification process. Here's what to expect.
An important and often time consuming part of the process of obtaining U.S. lawful permanent residence (a green card) through employment is when the employer files the required Labor Certification (LC) with the U.S. Department of Labor (DOL). This article will acquaint you with the steps in that process; it also will help you understand why it might take longer than you were hoping, or longer than was considered normal in the past.
What Exactly Is PERM "Labor Certification?"
An approved LC is a determination by DOL that the employer has proven, after a comprehensive recruitment and interview process, that there are no qualified U.S. workers available and willing to take the offered job.
The DOL processes LCs using a system called PERM (Program Electronic Review Management), which was established in 2005. The idea was to streamline what had been an extremely complicated process, as well as reduce the overall time needed to obtain an approved LC.
Before the change to PERM, DOL and related state agencies were involved in every step of the process. As a result, the processing times for LCs were extremely long, because DOL and the state agencies did not have the resources to process each LC in a timely manner. Government processing of LCs was taking a couple of years.
Under the PERM program, the employer is required to complete all recruitment without any involvement by the DOL, except the prevailing wage determination mentioned below. After completing the recruitment process, the employer submits a form listing its recruitment steps and attesting that it found no qualified U.S. workers for the job.
To ensure quality control, DOL selectively chooses to audit some of the LCs. That means that it reviews the employer's recruitment process and at times requests the resumes of people who applied for the position. In one exception to the usual process of the employer handling the recruitment on its own, DOL sometimes requires employers to go through what is called Supervised Recruitment. It resembles the former state-driven process and involves DOL instructing the employer when and where to advertise and then serving as the intermediary to receive resumes of candidates.
Next, in order to understand the time it will likely take to obtain an LC, let's look at each of the steps in the PERM process and how long each step will likely take by itself.
Step One: Employer Writes Up Job Description and Requirements
In the initial step, the employer must develop the job description and minimum requirements, decide the recruitment steps, and address any potential issues. This can be more complex than it might sound. This initial step usually takes employers a month or two.
Step Two: Employer Obtains Prevailing Wage Determination From DOL
Once the initial planning step is complete, employers will typically request a prevailing wage determination (PWD) from DOL. As of early 2023, processing of PWDs was taking six to eight months for most requests and up to a year or more for some. It can be even longer if the employer disagrees with the DOL's wage determination and requests a redetermination or files a new request with an adjusted job description and/or minimum requirements.
The DOL's website for prevailing wage requests is called "FLAG," or Foreign Labor Application Gateway. Though several years old now, it took DOL a while to overcome its many technical glitches. Fortunately, DOL now monitors the system continuously, and quickly addresses occasional technical troubles.
It is usually beneficial for employers to wait for the PWD and resolve any wage issues prior to beginning recruitment, but it is not required. If the LC must be filed as soon as possible, the employer can move forward with the recruitment process before the DOL completes the determination.
However, if the employer chooses to move forward with recruitment before obtaining a PWD, it cannot file the LC until receiving the PWD, and must file the LC before the PWD expires. With longer PWD processing times, this requires careful planning to time the recruitment and PWD validity period.
Step Three: Employer Conducts Recruitment of Potential Job Candidates
Once the employer begins recruitment, it has between 60 and 180 days to file the LC. In addition, prior to filing the LC, the employer must allow for a 30-day "cooling off" period, during which it must post no job notices, nor conduct any recruitment except for one of three "additional" recruitment steps.
Thus, if the employer wants to file the LC within 60 days, it must post all job notices and complete almost all recruitment within the first 30 days. However, if the employer receives a large number of responses and/or needs to further screen applicants in order to determine whether any are qualified, the process could take longer. The employer might also need to delay the filing, or even restart it, if it finds qualified workers or experiences a layoff.
Step Four: Employer Files Labor Certification
Once the employer has completed recruitment and waited out the 30 day cooling-off period, it can file the LC. With the longer PWD processing times as of early 2023, most employers need about a year to complete all the steps needed to file the application.
Step Five: DOL Makes Decision on Labor Certification
DOL processes LCs in the order it receives them. Its processing involves approving, denying, or auditing the LC. DOL's processing times can be found on its FLAG website.
As of early 2023, DOL typically performs the initial review of LCs in about eight months. The agency hasn't exactly been consistent, and because the agency relies on Congressional funding, processing times likely will remain long until DOL can charge filing fees and then hire additional staff.
Possible Step Six: Employer Deals With DOL Audit or Denial
If DOL decides to audit the LC, it will give the employer 30 days in which to respond. DOL tends to process audited LCs within about three months from receiving the employer's response.
If DOL denies the LC, the employer has 30 days in which to file an appeal. If the employer files an appeal to correct a government error, DOL will decide on the appeal within a few months. Otherwise, DOL typically takes several years to process an appeal. See Why Labor Certification Is Denied for more.
The result of all this is that it is possible for an employer to obtain an approved LC in about a year. Still, because LCs remain complex and because of longer processing times, it is typical for an employee to wait more than a year before the employer has taken all the steps required to receive an approved Labor Certification.
