The practice of hiring foreign for employment in the U.S. is a touchy subject these days.
Foreign hiring and immigration reform are hot button issues across the nation, from the halls of Congress to the kitchen tables of ordinary Americans.
Yet there are occasions in which the employment of a foreigner makes the most business sense. And in some cases, the permanent employment of a non-U.S. citizen is the company's only option. Although the government is extremely sensitive about hiring practices that bypass qualified U.S. workers, there are special circumstances in which employers are permitted to permanently hire foreign workers.
The requirement for permanently hiring foreign workers begins with labor certification. Labor certification is designed to demonstrate that there are no qualified American workers capable or willing to fill the position. The process is intentionally difficult, but for most employers, it's your only option.
- Identification & evaluation. The first step is to identify a legitimate need for foreign workers. If it's likely that qualified U.S. workers want the position, the odds of a successful certification process are marginal, at best. DOL suggests that employers carefully evaluate the job opening to make sure that it complies with the criteria of the labor certification program before they invest time and energy in a formal application process.
- ETA application. If the vacancy appears to meet qualification requirements, the next step is to submit an application to ETA (Employment & Training Administration). Since 2005, ETA Form 9089 applications must be filed through PERM, DOL's electronic labor certification system. Along with the application, you will be required to submit a substantial amount of supporting documentation. During this phase of the certification process, the employer is required to conduct recruitment and market testing to determine whether the position can be filled by U.S. citizens.
- Wage and compliance. At this stage of the process, the employer must also demonstrate prevailing wage and a working knowledge of compliance issues in the event that the labor certification application is approved.
- Submission and response. After all of these steps have been completed, the application is signed and delivered to the appropriate DOL office. DOL then notifies the employer about the outcome of the application, usually within 45-60 days.