The Labor Certification process (PERM) is a test of the U.S. labor market to determine that there are no willing, able, and qualified U.S. workers to fill a permanent offer of employment with the sponsoring employer.
The PERM process first mandates that employers receive a prevailing wage determination from the Department of Labor prior to filing the labor certification. The employer must then complete very specific recruiting requirements including newspaper ads, job site postings, a placement with the state’s workforce agency as well as three additional forms of recruitment. The employer must evaluate all U.S. workers responding to the advertisements to see if they meet the minimum requirements for the offered position.
If an employer finds a qualified candidate, there is no requirement to hire that individual. However, the employer may not proceed with filing the PERM application at that time. If, however, the employer fails to find a minimally qualified U.S. worker who is able and willing to accept the job, the employer may file the PERM application with the U.S. Department of Labor.
When the PERM application is approved by the Department of Labor, the employer may then proceed to the next step of the employment-based permanent residency process: filing Form I-140 Immigrant Petition for Alien Worker. If the priority date is current (in PERM cases, the priority date is the date the PERM was filed), the employee may concurrently file the final step in the permanent residency process, the Form I-485, with the employer’s Form I-140. In cases where the preference category is “oversubscribed” with a waiting list for that particular category, an approved I-140 allows employers to extend the H-1B status of an individual employee beyond the six year maximum and, under recent regulations, will also allow the H-4 dependent to apply for work authorization until the preference category is current. In cases where the physician has a three year J-1 waiver obligation to work in an underserved area, the physician must wait to file the I-485 to adjust status until the service obligation has been fulfilled and the J-1 waiver is permanently granted.
Read more here about immigration options for physicians. If you are an IMG physician or employer in need of assistance with immigration issues, we welcome you to contact an immigration attorney at Sivaraman Immigration Law to request a consultation.