Workers who are not authorized to work in the United States must obtain permission from the government to legally work. The least involved process for obtaining this permission is the application for a non-immigrant visa, but the list of who qualifies for these visas is very limited.
Most non-US workers will be required to apply for a visa or Green Card, which involve employer sponsorship. The sponsorship process can be costly and lengthy, so knowing how sponsorship works can give you a better idea of what to look for in a potential non-US employee.
Introducing the PERM
The sponsorship process necessitates the employer to prove that no American worker is qualified, willing, and available to take the job. The process of proving this to the U.S. government is called "labor certification" often referred to as Program Electronic Review Management, or PERM.
Prevailing Wage Determination
The first hurdle in the PERM process is called a Prevailing Wage Determination (PWD) request to the Department of Labor (DOL), to determine the prevailing wage for the position offered. This is required because the employer must offer the immigrant worker 100% or more of the prevailing wage. Fortunately, today this is all completed online in a short amount of time using the DOL's iCert system.
Recruitment and Advertisements
Next, the employer must actively advertise and recruit for the position in the United States, offering 100% of the prevailing wage to any acceptable applicants. The Department of Labor has strict requirements for minimal and acceptable advertising and recruiting requirements, which can depend on the type of visa being sponsored. (This step can actually be completed early in the hiring process, but the proof of the good faith effort to recruit an acceptable employee in the US must be present at this point).
Labor Certification Application
Once the above steps have been completed, the employer may then submit the labor certification application to the DOL online. The DOL will then make a determination on the application. Once the labor certification application is approved, the process must then move into the visa application phase. The employer must file a visa petition using USCIS Form I-140. After the visa petition is approved, the immigrant worker must apply for a Green Card either through a procedure called adjustment of status (if the immigrant is legally in the U.S.) or consular processing (if the immigrant is overseas).
A short list of job categories are exempt from the labor certification process, and can be fast-tracked straight to the Green Card application phase, significantly reducing the time and cost required in the sponsorship process. These categories include:
- Workers that possess extraordinary abilities in the arts, sciences, education, business, or athletics; outstanding professors and researchers; and managers and executives of multinational companies (called the "employment first preference" category),
- Millionaire entrepreneur immigrants ("employment fifth preference"),
- Religious workers coming as "special immigrants" ("employment fourth preference"), and
- People whose occupations are listed on "Schedule A," meaning that the U.S. government recognizes there is a shortage of such workers.
If you are ready to hire a foreign employee or have additional questions, the Bridge team is standing by to help.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.