The US Department of Labor has instituted the labor certification process in order to protect the employment prospects and working conditions of U.S. workers. In order for a petitioning employer to obtain the labor certification that is necessary to sponsor a foreign national beneficiary, the petitioning employer must prove that there are no able, willing, qualified, and available U.S. workers to fill the position that is being offered to the foreign national beneficiary.
The PERM process requires petitioning employers to test the labor market through good faith recruitment to determine if there are any U.S. workers available to fill the offered position. Only after the petitioning employer finds that there are no “able, willing, qualified, and available U.S. workers” for the position can the petitioning employer file the PERM application to begin the process for the qualified foreign national beneficiary.
Per regulations found at 20 CFR § 656, a U.S. worker is defined as a worker who is:
- A U.S. citizen;
- A U.S. national;
- Lawfully admitted for permanent residence;
- Granted the status of an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1);
- Admitted as a refugee under 8 U.S.C. 1157; or
- Granted asylum under 8 U.S.C. 1158.
When performing the required recruitment involved in the labor certification process, petitioning employers are obligated to consider any and all U.S. worker applicants. Rejection of U.S. applicants is lawful only when it is due to a job-related reason, such as being unqualified, unwilling, or unavailable. A petitioning employer may lawfully reject a U.S. worker if it is determined that the U.S. worker applicant does not meet the offered position’s minimum requirements, and that these deficiencies cannot be overcome through reasonable on the job training. DOL will deny the labor certification application if it finds that even just one U.S. worker applicant was unlawfully rejected.
However, if the applicant does not fit into one of the above categories, the applicant is not a U.S. worker and, therefore, does not have to be considered for the position even if the applicant is minimally qualified. Rejection of the applicant is considered lawful as the applicant is not a U.S. worker and the PERM certification process was put into place to protect U.S. workers.
By: Jessica Palarca, Staff Attorney
Jessica Palarca is an attorney in the PERM Labor Certification Department at Reddy & Neumann, P.C., Houston’s largest immigration law firm focused solely on U.S. employment-based immigration. Jessica assists clients in the beginning stages of the green card process.
Jessica earned her J.D. from the University of Houston Law Center in 2009 and was admitted into the Texas bar the same year. As the child of two immigrant parents, Jessica found her passion for immigration law early in her career. With over a decade of experience in both the private and non-profit sectors, she brings a different perspective to each case she handles. Through the years, Jessica has learned that to achieve the best possible results for each individual served, one must keep things simple and provide personalized attention and care to each case.