Sponsoring an Employee for a Green Card
By Michael Wildes Managing Partner, Wildes and Weinberg PC | January 08, 2012
While every industry has been affected in some way by the global financial crisis, that holds particularly true for the Hospitality industry. With the erosion of revenue and profitability in the Hotel sector, many hoteliers are searching for top talent to implement their innovative business strategies. They have realized that hiring and retaining the right employee is a critical way to stay competitive in a recovering economy. For many modern hoteliers, nothing is more valuable than finding the right person to stick around long enough to learn how to adapt in periods of prosperity and decline.
Sometimes, despite a considerable investment of time and resources, an hotelier isn't able to find an American worker to fill the position. In that event, hoteliers are not limited to the pool of US workers who do not meet the minimum requirements for the job; they may consider hiring a foreign national. One way to do this is by sponsoring a foreign national for permanent residence through a process called Labor Certification. Once an hotelier is able to obtain Labor Certification, she may sponsor a foreign national for permanent residence; this means the right person for the job will become eligible for a green card.
First and foremost, because of the great benefits of legal permanent residence, which are granted to beneficiaries of the Labor Certification process, a Labor Certification is not easy to obtain. In fact, it's probably one of the toughest means of achieving an employment-based immigration benefit. Second, Labor Certification doesn't really have anything to do with immigration. How is that? Well, Labor Certification is an invention of the United States Department of Labor in response to an immigration requirement that requires the Secretary of Labor to certify that before a worker can enter the U.S., it must first be shown that there are no able, willing, qualified or available U.S. workers to fill the prospective job opening. The U.S. agency has implemented this meticulous scheme, in large part, to protect jobs for U.S. workers. Therefore, before offering a foreign national a job that may result in permanent residency, an employer hotelier must stop and check with the Department of Labor to make sure that it is OK.
In its application for Labor Certification, the Department of Labor (DOL) requires an employer to prove that there is no minimally qualified U.S. worker available to fill the position. The application is submitted online through a system called PERM (Program Electronic Review Management), a process which consists of several steps. First, the employer must identify the duties and requirements of the job. This step seems simple enough, but it isn't. It takes skill and knowledge of the system to draft a description of duties and requirements that will pass muster with the Department of Labor. Next, the employer must request something called a "prevailing wage determination." The Department of Labor will respond with a number. That number represents the minimum salary the foreign national must be compensated, based on the level of knowledge and experience required for the job. Hoteliers must then indicate on their applications that they will pay at least that much to whoever is hired for the job. The purpose of a wage determination, after all, is to protect U.S. workers from domestic companies who might seek out foreign nationals to work for less. The prevailing wage determination ensures that whoever fills the position will be paid at least the average wage paid to a similarly employed U.S. worker.
Once the employer receives the prevailing wage determination, she may proceed to the recruitment phase of the Labor Certification process. Incidentally, timing is everything in the Labor Certification process. There are many steps that must be completed within a certain time frame, and the completion of certain steps trigger the initiation of others. Getting the timing right is one of the reasons Labor Certification can be incredibly challenging for employers who are unfamiliar with the process.
The recruitment phase requires the employer to advertise the job in a major daily newspaper of general circulation in the area of employment for two Sundays. Any attempt to advertise in a little-known newspaper will require the employer to go back and do it over. In addition, a 30-day job order must be listed with the State Workforce Agency (SWA) of the DOL, in the State where the job is located. This is yet another attempt by the DOL to ensure that the employer makes an effort of hire a US worker before certifying a foreign national for the position.