Using Permanent Labor Certification To Counter Labor Shortage

Now may be the best time for U.S. employers to recruit foreign workers via the Permanent Foreign Labor Certification process, in the aftermath of the "Great Resignation" of American workers. 

As reported by the New York Times, since the outbreak of the pandemic, about 4.3 million workers, which represent 3 percent of the American workforce, have quitted or otherwise given up their jobs. There are currently 11 million job openings in the U.S.  And the trend is expected to continue in 2022.  Americans quit their jobs for various reasons, but the resulting labor shortage is real and widespread. Chipotles have become mad houses during weekends. The are long times in all sorts of retail establishments.  Demand for professional workers, such as business analysts, software developers, engineers, etc., is equally high. 

A logical alternative for employers is to hire foreign workers to fill their job openings. Obtaining a labor certification (aka PERM) is a prerequisite requirement before a U.S. employer can hire a foreign worker for a permanent full-time position in America.

PERM was promulgated by the DOL in March 2005 as a new rule to govern the filing and processing of labor applications for the permanent employment of foreign workers. This new rule completely revamped the previous certification process of labor applications. It is an online system with new features and specific regulatory requirements. Despite some technical glitches and regulatory issues, PERM has proven to be a better system in handling labor applications. 

Before a PERM application is certified for a job opportunity, the employer must establish, through a series of recruiting efforts, that it has not been able to find a ready, willing, able and available American worker to take the job.  In a tight job market, such a showing may be difficult as there are plenty of available workers.  However, the recent exodus of workers from the market means that qualified workers are actually hard to come by.

The Visa Bulletin controls how fast a foreign national can immigrate into the U.S. For many countries especially the Philippines and Mexico, the waiting time for family-based immigrant visas is extremely long.   In contrast, visa numbers are readily available for employment-based categories including EB-1, EB-2 (advanced degree holders) and EB-3 (professional and skilled workers).  Hence, it would be a lot faster for citizens of these countries to immigrate to the U.S. based on job offers by U.S. employers.

Labor certification is usually the first step to start an employment-based immigrant visa petition.  To the extent that the current labor job market is devoid of qualified workers, employers should take advantage of the PERM labor application process to petition for foreign workers to fill this void.   It is a win-win situation for U.S. employers, foreign workers, and the American economy.  The PERM labor certification process is powerful but also highly-regulated.  Interested employers and employees should consult with an experienced immigration attorney before filing a labor certification.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.)