Labor Certification

Each year, approximately 140,000 people permanently immigrate to the United States for work. All but a handful of these people are sponsored by U.S. employers. In order to lawfully bring a foreign employee to the U.S., the employer must get the federal Department of Labor (DOL) to issue a labor certification form. DOL must certify that:

• There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage, and
• Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

In order to make this certification, DOL has a complex process, commonly known as PERM, which employers must go through.

Immigration law requires that employers pay foreign workers at least the prevailing wage for the worker’s position, so the first step in the PERM process involves figuring out what the prevailing wage for a particular job is. In order to get this information, the employer files a request with the DOL for a prevailing wage determination (PWD). The DOL figures out what the prevailing wage is based on information, supplied by the employer, on job requirements, job duties, the worksite location, and the common wage for the specific job position in the specific worksite location.

Once the employer gets a PWD, they must advertise for the position at the PWD rate of pay. This is a really important step in the process since DOL must be able to certify that there were no suitable workers already in the United States. The DOL will not certify that there were no workers were available unless the employer made a good faith effort to find them.

If the employer does not find any suitable applicants after making a good faith effort, the employer can file the PERM application with the DOL to get a labor certification. If a labor certification is granted, the employer and potential employee can move forward with the green card process.

Application audits are very common, so having everything in perfect order is essential to keeping the process moving along. An experienced immigration attorney can help employers navigate the labor certification process to ensure that all the necessary forms are filed and steps are taken. Contact us for a consultation regarding your labor certification issue today.

The Immigration Reform and Control Act requires that all U.S. employers verify the identity and eligibility of all workers, whether they are American citizens or not, by completing the Employment Eligibility Verification Form I-9.  An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later.

At any time, the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice may request all I-9’s on file for any given U.S. employer. During review, if errors are found in the I-9 documentation, or forms are missing, or if it is discovered that an employer “knowingly” continued to employ an unauthorized worker, the employer may be subject to serious penalties

In recent years, the Department of Homeland Security has increasingly targeted the workplace as a way to keep an eye on foreign nationals. The civil fines for paperwork violations can be hefty, with a single Form I-9 error costing as much as $1,100 per employee. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. With stricter enforcement efforts, it is important that you consult an immigration attorney who can provide your business with I-9 compliance assistance.

Our attorneys can protect you and your employees in the following ways:

• Develop and maintain an I-9 compliance plan for your business
• Perform an internal audit of all I-9 forms to ensure that your business has the ability to promptly comply with an audit from the governmental agencies listed above
• Correct any errors found on your employees’ I-9 paperwork
• Train your staff on I-9 procedures and verification
• Prepare your I-9 documentation for audits from the Department of Homeland Security, Immigration and Customs Enforcement and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice
• Assist with negotiation and settlement of penalties which may arise from failure to comply with all I-9 verification procedures