How to Sponsor Your H-2B and H-2A Workers for a PERM Labor Certification Green Card Petition

As a U.S. employer sponsoring H-2B (Temporary Non-Agricultural Workers) or H-2A (Temporary Agricultural Workers) workers, you may eventually find yourself interested in securing a more permanent status for these employees through the PERM Labor Certification process, which is a crucial step in the green card process for foreign workers. This article will guide you through the steps and important considerations for sponsoring H-2B and H-2A workers for a PERM Labor Certification Green Card Petition.

Understanding the PERM Labor Certification Process

The PERM Labor Certification is the first step in securing a U.S. employment-based green card for foreign workers. This process is required to prove to the U.S. Department of Labor (DOL) that there are no qualified U.S. workers available to fill the position that the foreign worker is already occupying or is being sponsored for. In other words, the employer must demonstrate that hiring a foreign worker will not adversely affect the wages or working conditions of U.S. workers.

The PERM process is a labor market test, which means employers must first attempt to hire U.S. workers for the position before seeking foreign workers. However, if you are already sponsoring foreign workers under the H-2B (Temporary Non-Agricultural Workers) or H-2A (Temporary Agricultural Workers) visa programs, you are eligible to transition those workers into permanent roles via the PERM process.

Steps to Sponsoring Your H-2B and H-2A Workers for PERM Labor Certification

1. Ensure the Worker is Eligible

Before beginning the PERM process, you must ensure that the H-2B or H-2A worker you wish to sponsor is eligible for a green card under an employment-based category. The most common green card categories for H-2B and H-2A workers are:

- EB-2 (Employment-Based, Second Preference): For workers with an advanced degree or exceptional ability in their field.

- EB-3 (Employment-Based, Third Preference): For skilled workers, professionals, or other workers who perform non-temporary services.

If your worker’s role qualifies under the EB-2 or EB-3 categories, they may be eligible for a green card once the PERM Labor Certification is approved.

2. Determine the Prevailing Wage

To begin the PERM process, you must obtain a prevailing wage determination from the U.S. Department of Labor (DOL). This ensures that the wages offered to the worker meet the local labor market standards for the job classification. The prevailing wage is typically determined by the DOL’s National Prevailing Wage Center based on the job’s duties, location, and required skills.

3. Conduct Recruitment Efforts

You are required to demonstrate that you made a good faith effort to recruit U.S. workers for the position by advertising the job and considering U.S. worker applicants. The recruitment efforts must include:

- Job order with the state workforce agency (SWA).

- Two Sunday newspaper advertisements in a local area newspaper.

- Additional recruitment options, such as job fairs, employee referral programs, or posting through professional organizations.

Recruitment must be done at least 30 days before filing the PERM application. The results of your recruitment efforts must be documented carefully. If U.S. applicants are found to be unqualified, you may proceed with the PERM application.

4. File the PERM Application

After completing the recruitment and ensuring compliance with all DOL requirements, you can file the PERM application online through the iCERT Portal. The application will include details such as:

- The job position and requirements.

- The results of the recruitment process.

- The wage offered and the prevailing wage.

The DOL will process the application, and this typically takes 6-12 months. During this time, they may issue an audit request, asking for additional documentation or clarification.

5. Adjudication of PERM Labor Certification

Once the DOL approves the PERM application, you will receive the Labor Certification. At this point, you can proceed with the next step in the green card process: filing the I-140 Immigrant Petition with U.S. Citizenship and Immigration Services (USCIS).

6. Filing the I-140 Immigrant Petition

After receiving the approved PERM Labor Certification, you must file the I-140 Immigrant Petition on behalf of the worker. This petition must include:

- The approved PERM certification.

- Evidence of the worker’s qualifications (e.g., degrees, certifications, work experience).

- A copy of the prevailing wage determination.

This petition will be processed by USCIS, and the approval can take several months.

7. Adjustment of Status (I-485) or Consular Processing

If the worker is in the U.S. at the time their priority date becomes current, they can file the I-485 Application to Adjust Status to obtain their green card. If the worker is outside the U.S., they must undergo consular processing at a U.S. embassy or consulate to obtain their immigrant visa.

Important Considerations for H-2B and H-2A Workers

Timing: The entire PERM and green card process can take several years, depending on the worker’s country of origin and the specific category under which they qualify. Therefore, it is important to plan ahead and begin the PERM process early.

When sponsoring H-2B or H-2A workers for a PERM Labor Certification, it's important to note that the job being offered must be permanent and year-round. This is a critical distinction because H-2B and H-2A positions are typically temporary roles, and the PERM process requires a permanent, full-time position.

Permanent vs. Temporary: Unlike the H-2B or H-2A visa programs, which are designed for temporary, seasonal, or peak load employment, the PERM Labor Certification is for positions that are permanent, ongoing, and full-time. The job should not have an expiration or end date.

Year-Round: In addition to being permanent, the position should require continuous, year-round employment. For example, a seasonal position that ends after a few months would not qualify for PERM.

This means that if the H-2B or H-2A worker’s current position is temporary, you will need to demonstrate that the position for which the worker is being sponsored under the PERM process is fundamentally different in nature — it must be a long-term, permanent role that is expected to be available to the worker on a continual basis.

Failure to demonstrate that the job is permanent and year-round could lead to the denial of the PERM application. Be sure to adjust the job description and nature of the role to reflect these permanent, full-time requirements.

Conclusion

Sponsoring H-2B or H-2A workers for a PERM Labor Certification Green Card Petition is a multi-step process that involves recruitment, ensuring the appropriate wage levels, and filing with the Department of Labor and USCIS. It is essential for employers to carefully follow each step, maintain detailed records, and be aware of the timing requirements. By successfully navigating the PERM process, employers can transition their foreign workers into permanent roles, benefiting from their skills and contributions for years to come.

If you are considering sponsoring H-2B or H-2A workers for a green card, consulting with an immigration attorney can help streamline the process and ensure compliance with all requirements.

© Becky Fu von Trapp, Esq. All rights reserved. This content is original and may not be copied, reproduced, or distributed without attribution and prior permission.