For individuals seeking to immigrate in the Employment-Based 2nd and 3rd preference categories, a labor certification is usually a necessary prerequisite to applying for permanent residency. The underlying purpose of the labor certification law is to accommodate a balance between the legitimate needs of the employer and the protection of the U.S. labor market. Specifically, the labor certification process involves a demonstration that there are not sufficient U.S. workers available for the job position and that employment of the foreign national will not adversely affect the wages and working conditions of U.S. workers. To obtain a labor certification, the employer must take the following actions:
•1. First, the employer must determine the minimum job requirements for education and experience.
•2. Second, the employer must obtain relevant data regarding prevailing wages from the state workforce agency.
•3. Third, the employer performs a series of recruitment steps and evaluates/interviews the potential candidates for the position, carefully documenting the reasons for rejection of candidates. If U.S. workers applied for the position, the employer must document lawful job-related reasons for rejection.
•4. Fourth, the employer prepares and submits an Application for Permanent Employment Certification, following the Program Electronic Review Management ("PERM") procedures. The application is submitted to the U.S. Department of Labor. On the application, the employer attests to the job requirements, prevailing wage, the steps taken to recruit job candidates for the position, and verifies that no other qualified candidates could be located for the position.
•5. The Certifying Officer reviews the case and grants, denies or audits the labor certification. Once the labor certification is approved, the visa petition can then be filed. If the case is denied, a Motion to Reconsider may be made, or an appeal can be filed with the Board of Alien Labor Certification Appeals.
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