The Department of Labor introduced significant changes on July 16 that will directly impact employers that process labor certifications for their employees. Labor certifications, more commonly referred to as the employment arm of the “green card” process, play a crucial role in helping organizations recruit and maintain the global talent they need in order to remain competitive.
The recent changes will not only impact an employer’s internal process for processing green card applications, but also will likely lead to revisions to their recruitment strategy and budgetary forecasting moving forward.
What is Labor Certification?
Issued by the DOL, a permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. It is one of three steps in the process for obtaining employment-based green cards.
The typical employment-based green card process can be broken down into the following three stages:
- The Program Electronic Review Management (PERM) Labor Certification and submission of FORM ETA 9089.
- Form I-140. An employment-based immigration petition.
- Form I-485. The adjustment of status application for permanent residency (which ultimately results in the issuance of a green card).
Employers are required to file a PERM Labor Certification application with the DOL’s Employment and Training Administration on behalf of the employee who they wish to sponsor for permanent residence. This is essentially a labor market test whereby employers are required to show that there are no qualified and interested U.S. workers available to fill the position.
Changes to the Labor Certification Process
The DOL now prohibits the substitution of alien beneficiaries on permanent labor certification applications, which means employers cannot substitute a new employee for labor certification if the original employee who applied has left the company.
Before the new ruling, substitutions were often used to reduce the amount of time needed to provide a green card for employees. This provided a great recruiting advantage as it gave employers the opportunity to provide an employment-based green card sooner to potential employees.
Why the Change to Refuse Substitutions?
The DOL is trying to reduce the opportunities for fraud, aiming to prevent the sale, barter, or purchase of permanent labor certifications. With faster labor certification processing, the expectation is that the need for substitutions will be reduced.
Employers must now abide by the 180-day “validity period,” which limits the filing period for an approved permanent labor certification to 180 calendar days. This directly supports Form I-140, which is the second step for obtaining an employment-based green card.
This particular change can be a burden to employers as the time required to compile the necessary information for labor certification is often more than 180 days. The clock starts when the labor certification approval is issued, not when it is received, so there can be a significant gap in time from when the labor certification is approved online to when the employer receives the original labor certification approval in the mail. Thus, the 180-day deadline forces employers to constantly monitor online approvals.
In addition, the time required to compile the necessary information can push this 180-day time limit if employers are not properly prepared. The filing of an I-140 petition requires the interaction of the employer, the attorney, and the employee.
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The employer must supply information regarding the company and its finances. For example, there can be legitimate delays in obtaining financial documents from the employer for the most recent tax period, even if the taxes are filed within the permitted timeframes.
The employee must supply proof of his/her qualifications. For example, if the employee needs to obtain his employment verification letter from abroad, the entire timeframe will likely extend even further.
Employers are now required to pay the costs of preparing, filing, and obtaining the labor certification application and can no longer pass along the costs incurred for this application to their employees. The new rule states employers cannot seek or receive payment of any kind for activity related to the labor certification. This includes payment of attorney fees and advertising costs as well as:
- No monetary payments.
- No wage concessions, including deductions from wages, salary, or benefits.
- No kickbacks, bribes, or tributes.
- No in-kind payments.
- No free labor.
This change only applies to the labor certification (ETA 9089) application, as the I-140 immigration petitions and I-485 adjustment of status applications are not included under the new revisions. These fees can still be paid by an employee.
Employers who offer the opportunity to obtain an employment-based green card as a recruiting tool will no longer be able to pass these costs on to their employees.
To successfully manage the newly revised foreign employee labor certification filing process, remember to consistently monitor progress to ensure the case keeps moving forward by tracking the multiple forms, deadlines, application stages, and the expiration dates.
Also, take the necessary steps to correctly prepare and gather the required support documentation beforehand to ensure you can move forward with the Form I-140 submission upon receiving labor certification approval. Once a labor certification is approved, employers can immediately file the I-140 form for their employees if they are prepared. Gathering the right documentation for the labor certification application can save employers precious time and is a key to filing your Form I-140 within the 180-day window.
Although the recent changes from the DOL will impact an employer’s recruitment strategy and budgetary plans for the future, opportunities do exist to create a recruiting advantage through your labor certification process. Approaching immigration strategically can help employers keep the process moving forward and help reduce the time and costs associated with obtaining labor certifications.