INTRODUCTION TO LABOR CERTIFICATION
A labor certification from the United States Department of Labor is a prerequisite to most employer-sponsored immigrant petitions. In 1965, Congress introduced the labor certification requirement into the immigration law in an attempt to protect U.S. citizens and permanent residents from competition from foreign workers in the U.S. labor market. Under the Immigration and Nationality Act, with certain exceptions, any foreign individual entering the U.S. to obtain employment on a permanent basis is inadmissible unless the Secretary of Labor has certified that there are not sufficient U.S. workers who are "able, willing, qualified and available" for the position and that the employment of this individual "will not adversely affect the wages and working conditions" of similarly employed U.S. workers.
From 1978 to 2005, the process of applying for a labor certification was governed by detailed regulations and a legacy of inconsistent administrative law decisions and conflicting regional practices. The process was extensively criticized over the years as cumbersome for employers and applicants, ineffective at protecting the jobs of U.S. citizens and permanent residents, inefficient, and the cause of extremely long adjudication backlogs.
In response to many of these criticisms, the U.S. Department of Labor ("DOL") overhauled the labor certification application process. It published a new set of regulations governing the application process, which it called Program Electronic Review Management (commonly known as "PERM"). The PERM regulations, which became effective on March 28, 2005, preserve the traditional purpose and principles of the labor certification process but attempt to increase the efficiency and effectiveness of the process by simplifying and shortening the adjudication procedure while raising the standard for approval. In addition, the PERM regulations seek to clarify some previously ambiguous areas within labor certification practice.
This article will summarize the key steps and issues in the PERM labor certification process.
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Previously published in Practising Law Institute's Litigation and Administrative Practice Course Handbook Series: "Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas.".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.