I’ve met with many employers with the same issue – they are having a hard time finding workers. One potential solution is petitioning for foreign workers to fill those jobs. The process works and can fill a range of jobs from landscapers to cooks to hotel workers to tech jobs and everything in between. However, the caveat is that it will take time, and it can take even longer depending on where the foreign worker was born (nationals from India can end up waiting almost 10 years for a green card through an employer). My answer to employers who say that they need workers now and cannot wait long is if the positions you are trying to fill are ones that constantly need to be filled, you should start the process because that time will eventually pass, and the time will come when the foreign workers will be able to get their green cards and work for you.
It’s a lengthy process, with specific deadlines, but I will summarize it here. The first step is filing for the prevailing wage with the U.S. Department of Labor (DOL). This document is filed online with the DOL. This outlines the job duties and minimum requirements a person must meet to be considered for the job. Once the DOL has reviewed the filing, they will issue the “prevailing wage determination” (PWD). This document tells the employer the minimum amount they must pay a worker in this position. Once it is issued (which will take several months as of the writing of this post), the employer begins the advertising and recruiting process. It’s possible to start the advertising and recruiting before the PWD is issued, but you have to be very careful about dates because as I said, there are very specific dates and deadlines that have to be taken into account.
The purpose of the advertising and recruitment process is to test the job market. The DOL wants to ensure that foreigners are not taking jobs from qualified U.S. workers who can legally work. Ads for the job must be placed in very specific places. If it’s a job that requires at least a bachelor’s degree, there are additional advertising requirements.
Once the advertising/recruitment period is done, the PERM can be filed with the DOL. The soonest the PERM can be filed is 60 days after the last ad has run. For example, if the date of the last ad ended on October 1, 2022, then the soonest the PERM can be filed is 60 days after that date.
Once the PERM is filed, it will take several months to hear from the DOL. They can issue an audit, which will always ask for proof that the recruiting was done among other potential requests, or they can “certify” it without issuing an audit.
Once the PERM is certified, the employer can file the petition for the foreign worker. This form alerts U.S. Citizenship and Immigration Services (USCIS) that the employer wants to petition a foreign worker for the job. Among other documents, the employer has to show they have the ability to pay the worker the wages they stated they would pay back in the DOL phase. This is shown is by submitting the employer’s most recent year’s business tax returns. The net income line (income after all expenses are paid), must be above the wage that will be paid to the worker. For example, if the annual wage paid to the worker for this job will be $50,000, the net income on the employer’s tax returns must be at least $50,000.
If USCIS approves the petition, the potential foreign worker will be eligible to apply for a green card. Sometimes this person is in the U.S. maintaining legal status such as a student visa, or they are outside of the U.S. waiting in their country. If they are in the U.S., they could apply for their green card in the U.S. (AKA adjustment of status) assuming they meet the requirements to do so and they can remain here while waiting for the green card. If they are outside the U.S., they will eventually have an interview at the U.S. consulate.
There is a lot that goes into this process, but it is a potential solution for employers to fill those positions that they cannot fill with U.S. workers. If this is something you are interested in discussing further, call my office at 801-883-8204 to set up a consultation with me.
