Roadblocks to Labor Certification Tests

When we think about the various requirements that go into a given work visa or immigration situation, we generally first consider the requirements on the immigrant themselves – do they qualify for the numerous thresholds for entering in and working in the United States legally?

As immigration attorneys at Buhler Thomas Law, P.C., we’re here to tell you that there are other vital considerations as well. As an employer looking for approval to utilize a foreign employee under what’s called PERM labor certification, for instance, there’s a thorough process designed to test whether that employer’s local area is truly lacking in potential employees. Only after completing this test and finding no other reasonable options is an employer allowed to sponsor a foreign national for PERM certification.

There are a few common errors made during this test. Here are a few, and how to avoid them.

Incomplete Recruitment

The Labor Certification test is very labor-intensive, and a big part of this is during the market test portion. Employers are required to run certain kinds of “Help Wanted” ads, to make it clear to the public that a position is open – all of this needs to be done within 180 days before the petition is filed, and must be finished 30 days prior to the filing.

There are specific and fairly intense guidelines for these efforts, including different forms of recruiting and frequency requirements. Any failure to comply can result in a denial, as can missing any of the advertising methods or failing to document things properly.

Job Description

During these advertisements, the law requires that employers are honest about the job description – they aren’t simply able to list an impossible description locally, then bring in a foreign worker for a totally different job altogether. It’s also prohibited to specifically tailor a job description to the foreign worker you had in mind. These requirements have to be reasonable and standardized, and you could be denied if you don’t provide them.

Prevailing Wages and Ability to Pay

You are required to offer all employees, foreign or otherwise, at least the prevailing wage amount for the job – or the average amount paid to people employed in similar positions and with similar requirements. These wages and their documentations can be a problem for many employees.

Job Availability

The law states that foreign nationals cannot be sponsored to fill positions where employees were just laid off or furloughed. This can be complicated, because many larger businesses have to lay people off frequently, and for many reasons. These employers will have to take special care during Labor Certification applications.

Want to learn more about Labor Certification tests, or any other element of our immigration lawyer services? Speak to the attorneys at Buhler Thomas Law, P.C. to find out more.