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It is an acronym for “Program Electronic Resource Management,” which is the name for the online filing system for Labor Certification applications. The labor certification process is series of steps that allow U.S. employers to permanently employ foreign workers.
When U.S. employers cannot find enough U.S. workers who are ready, willing, qualified, and available, they may hire overseas workers (or foreign nationals already legally in the U.S.) to fill those positions. The visa category is called “EB-3,” which means it is the third type of employment-based immigrant visa available within our immigration system (there are a total of five categories). Within EB-3, there are three sub-categories – two with educational or experiential requirements and a final one called “Other Workers,” where the workers being hired “must be capable, at the time the petition is filed by the sponsoring employer, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature.”
We mainly work with employers in industries that face chronic staffing shortages. Examples of industries and roles I have with in the past are: building services companies seeking janitors; hotels seeking housekeepers; maid services seeking cleaners; various businesses seeking drivers; shipping facilities seeking order pickers and packers; and, home health care providers seeking caregivers, among others.
There are three government agencies involved in the process – the Department of Labor (“DOL”), U.S. Citizenship & Immigration Services (“USCIS”), and the Department of State (“DOS”). The majority of the process takes place in the DOL. We begin by filing a request for a Prevailing Wage Determination (“PWD”), where the DOL uses its data to establish appropriate wage levels for the position based on various factors. Either with the PWD in hand or while it is pending, we begin a process called “Recruitment.” This is a test of the domestic labor market to establish where the employer places three advertisements to show there are not enough U.S. workers available to fill the positions. The employer may then request the ability to hire the overseas candidate(s) – called a “Labor Certification” (or “LC”) – to fill these positions. You may hire multiple workers based upon a single round of recruitment if you have the capacity to hire them; for example, the largest user of this program nationally that we have seen is a large chicken company that hires hundreds of people each year to staff its processing facilities.These are just the steps of the process, though – not action items an employer must handle internally. We have systems in place to handle all of this for employer clients and make it as effortless as possible on their side.
There is not a fixed maximum number of employees an employer may hire based on one round of recruitment. An employer must certify it has the ability to pay everyone it is hiring (and, in some cases, we must document this to USCIS).
Whatever parameters an employer may set for its U.S. workforce and are reasonably connected to the job duties, we can set on the overseas candidates.For some jobs, this may be willingness to work certain shifts or take on overtime. For others, it may be physical abilities or, in the case of many production environments where safety is a concern, English language skills. We work with employers in several industries, so people also self-select and orient themselves towards what is a stronger fit for their skills and capabilities.For example, someone who has been a stay-at-home mom for several years may wait to apply until she sees a vacancy with a home health care employer whereas a young, single man may be looking for a place with a food production company that offers more physical work, but the ability to make good money through overtime. Plus, the employer can interview everyone to assess fit as mentioned above. For all these reasons, we are confident the candidates an employer ultimately selects will be great fits.
The law requires the employer pay all costs associated with obtaining the Labor Certification. For unskilled positions, the two costs are the cost of a newspaper advertisement and any legal fees.The cost of a newspaper ad varies by location and, of course, amount of text. In general, this can be expected to be: $1,500 to $2,000 in the largest few cities (NYC/SF); about $1,000 in major markets (DC/Seattle); $600 in secondary/tertiary markets (Savannah, GA/Huntsville, AL); and, $250-300 in rural areas or very small cities. We are also required by DOL regulations to charge something for filing the LC, but this is quite low (and we can delay invoicing it until after the candidates are in place).The first application in one round of hiring is a little complicated, but subsequent ones are quite easy because all the employer’s information remains the same.
Subject to a waiting period during which responses are collected, we then file the LC applications through the DOL’s online portal. We will work with you create an employer account to do this – either with a screenshot tutorial, sitting on the phone with you while you do it, or via some sort of remote help session where we can both see the screen. Once that is complete, I am assigned a “sub-account” where I can file applications, but other functionality is restricted (I cannot change the worksite
It is assigned to a person called a Certifying Officer, where one of two things happens: it is approved or it is selected for a secondary review called an “Audit.” This is not anything like an IRS audit. It is just a boilerplate request where we must provide documents to show the employer did recruitment properly, which they review and then certify (approve) the LC.
We first file a petition to USCIS asking them to confirm the worker is eligible for what is called an immigrant visa. For the employer, this part is easy – all we need is some signed forms and documents and possibly some financial information (all kept strictly confidential and not shown to the candidates) to show the company has the ability to pay the workers. After that is approved, the DOS does a background check on the applicants to make sure they are who they say they are, they do not have any prior history like crimes or immigration violations, and that they are not a risk to U.S. health or safety.
Longer than anyone would like and probably longer than it should take, since the purpose of the program is to help U.S. businesses that face staffing troubles. Realistically, the answer is hopefully around a year. If we are diligent about maintaining a solid timeline, probably 10-13 months before someone who is outside the U.S. can start. If we go at a slower pace, perhaps a year and half. If someone is in the U.S. in a temporary, but legal, immigration status, they will be faster.We understand this timeline renders the process untenable for employers in many industries – especially for younger businesses, a year may as well be a decade. We wish it were faster, but between ordinarily somewhat slow processing and COVID-19, this is what we are stuck with.We want employers to have a reasonable estimate of the timeline before workers can begin arriving so they can assess whether this program makes any business sense for them. Being realistic, we should plan on about one year before anyone can arrive.
Employers cannot use this program to adversely impact wages of U.S. workers in similar positions, so incoming workers must be paid the greater of the Prevailing Wage determined by the Department of Labor or the employer’s customary wage for employees in that particular role (and skill level, if applicable). For example, if no skills or experience are required for a position at which the employer customarily pays $12.00 per hour and the PWD comes back at $11.55, the employer still must offer the foreign worker the wage of $12.00 per hour.
The positions must be permanent, full-time ones with no fixed end date. You may employ them as long as you like and as long as business conditions allow for it. Both sides must enter into that arrangement in good faith.
Employers can file LC’s on behalf of workers from anywhere, but there are some practical considerations here as well. In reality, people from comparable quality-of-life countries are less interested in uprooting themselves and migrating to the U.S. because they are happy where they are. Thus, we have few workers from Western Europe, for example, interested in this program. On the other hand, moving to the U.S. is a fairly costly endeavor, so we also do not see workers coming from truly developing and evolving nations either. Most of the workers we see who are interested in this program are middle-class individuals in countries with growing economies. In our experience, these have been: Philippines, Bangladesh, and Vietnam as the largest, as well as candidates from Sri Lanka, Pakistan, Japan, Brazil, the Gulf Region and Western Africa.It is not feasible to hire from China or India due to limits on the overall number of visas available to any single country. For high population countries, this results in a waiting queue of people with approved cases who cannot be awarded visas (and thus cannot come and begin working). The added wait is over 10 years for these countries, so we do not refer candidates from there.
The DOS does a significant background check on all workers and their families as part of the visa process. This involves running their name and information against the equivalent of the FBI’s database in their home country and every country in which they have lived since age 16. They are required to provide clearances from police or federal agencies and certify they have not done anything that would make them inadmissible under U.S. immigration laws. But, of course, employers are free to put them through the processes all other employees go through as well.
The way the U.S. immigration system is set up requires pretty much anyone who wants to immigrate have a connection or tie to the U.S., which is called a “sponsor.” That tie might be a family member, or it could be an employer. In employment cases, “sponsor” just means the employer is offering a job and needs to pay them what is detailed in PERM application. There are NOT additional financial requirements on the employer, such as paying for travel or housing, which exist in some other visa types.
HR Visa connects U.S. employers with overseas jobseekers. We are based in Nashville, Tennessee, but we work with employers across the country.
