As an employer, you have the ability to bring in foreign workers that have a specific skillset that your company needs to the U.S. You might want to do this because you’ve exhausted the labor pool of qualified American workers and can’t find someone to fill a key position in your company. Or, you could already have a solid working relationship with a foreign worker, and you want to have them relocate to the U.S. in order to take a full-time position within your company.
There’s a set protocol that you have to follow before you can finalize your request for permanent labor certification for a specific person. If you skip a step, or if you aren’t thorough with compliance, your request will be denied.
You must first file a Prevailing Wage Determination Request
The Immigration and Nationality Act established the Prevailing Wage Determination (PWD) requirement in order to protect American workers from being priced out of their industry by foreign workers who can do the same job for less money.
A PWD is essentially a United States Department of Labor evaluation of typical salaries earned by similarly qualified workers in the same industry doing similar jobs. It is meant to ensure that you pay your foreign worker the same salary that you would pay an American worker.
The Department of Labor could investigate your wage compliance down the road, so it is essential that you comply with the PWD when establishing a salary for your foreign worker.
You must demonstrate that the position couldn’t be filled by a U.S. worker
Before you can bring in a foreign worker, there is an advertising requirement for the job that you must meet as a pre-requisite to being able to apply for permanent labor certification.
This advertising requirement is meant to show the Department of Labor and the United States Citizenship and Immigration Services that you put forth a good-faith effort to find a qualified American worker to take the position. If you are unable to find anyone who meets your needs within the time limit, then you will be able to bring in your chosen foreign worker to fill the role.
In order to satisfy the advertising requirement, you must file a job order with the State Workforce Agency in the state in which the job is located, and it must be posted for 30 days. You must also file a notice of the position in two consecutive Sunday editions of a newspaper in wide circulation in the area where the job is located.
It’s a good idea to make sure that the job postings are as thorough as possible, in order to prevent the Department of Labor from having any reason to deny your request. If you include a salary proposal in your post, make sure it complies with the PWD. An experienced immigration attorney can help you to ensure that your posts contain all necessary information to comply with the legal requirements.
Complying with federal immigration regulations can be a long and complex process. Once you complete the two steps mentioned above, you will be free to begin the process of filing a request for permanent labor certification for your chosen candidate.
Many employers and attorneys fail at labor certification, failing to establish the minimum requirements of the position and prove the beneficiary meets them in addition to the details of the prevailing wage, recruitment, and Form 9089 filing. At Litwin & Smith, we do PERM Perfect.