LABOR CERTIFICATION (PERM)
The first step for obtaining an employment based green card is usually to apply for the employer to obtain an approved labor certification from the Department of Labor (DOL). The PERM process, which stands for Program Electronic Review Management, is the way that an employer obtains an approved labor certification from the DOL. To understand the different employment based categories, check out our discussion of employment-based immigration.
Through various recruitment procedures, the PERM labor certification process ensures that the foreign employee is not replacing qualified American workers for the job that the foreign employee is being sponsored for. The PERM labor certification is required before applying for certain green cards. The EB-1 classification does not require a PERM labor certification, however, the requirements are stricter than the EB-2 and EB-3 green card applications. An approved PERM labor certification is required for the EB-2 visa, unless you qualify for the National Interest Waiver. It is also required for all EB-3 visas. If it is required, you cannot continue with the visa application process through USCIS until the PERM labor certification is approved by the DOL. An approved PERM labor certification is not lawful status. It is only the first step in getting approved for a green card. Once the PERM labor certification is approved, you can file a Form I-140 petition for immigration worker with USCIS to sponsor the foreign worker for permanent residence.
In order for your PERM labor certification to be approved, you must meet several requirements:
The employer must have made a valid job offer to the foreign beneficiary in writing.
The employer must have an IRS tax number, a physical office space, and a way to be contacted.
The employer must have an employer-employee relationship with the foreign beneficiary. This means they must have the ability to control the work of the beneficiary through hiring, paying, supervising, and firing them.
A valid written job offer must exist between the employer and the beneficiary.
The employer must pay the beneficiary equal to or more than the prevailing wage as determined by the DOL. The prevailing wage, as well as the salary for the position, must be stated on the PERM labor certification application.
The Employer must attempts to recruit American workers before filing with USCIS. The Employer must demonstrate that there are no qualified American workers for the job.
The PERM labor certification process is a multistep one. The following is a general list of steps:
Recruitment Process
Submit Form ETA-9089
Submit Form I-140
Recruitment Process
The employer must first extend a job offer to a foreign national and determine a PERM labor certification is appropriate. Then, the employer must ensure there are no qualified American workers for the job through the recruitment portion of the PERM process. The employer must advertise locally and publicly that a job is available. If any qualified American workers apply for the job, they must be interviewed and given priority ahead of the foreign beneficiary, if qualified for the position. If the employer does not hire any of the American applicants, you must have a valid reason.
The exact recruitment process will depend on if the job is a professional or nonprofessional job. Professional jobs are jobs that require at least a bachelor’s degree or its equivalent. Nonprofessional jobs are jobs that do not require a degree. An immigration lawyer can confirm if the job is professional or nonprofessional if you are unsure.
Professional jobs have stricter requirements for the recruitment process. Firstly, the employer must place a job order with the State Workforce Agency. The job order must be available for at least 30 days. Secondly, they must place a job order in a Sunday newspaper for 2 consecutive Sundays. One of the Sunday newspaper ads can be replaced by an advertisement in a relevant professional journal. Additionally, advertisements must be placed in at least three of the following:
At a job fair
On the employer’s website
On a job search website
At a campus recruiting event
Through a trade or professional organization
Through a private employment firm
Through an employee referral program
In college placement offices
In other local or ethnic newspapers
On radio and/or television
Nonprofessional jobs have slightly less strict requirements. The job order with the State Workforce Agency must also be placed for at least 30 days. Additionally, the employer must place an advertisement in 2 consecutive Sunday newspapers. However, they are not required to make any other recruitment efforts.
All recruitment efforts must be completed at least 30 days before you file the PERM application. This is to ensure that any applicants have adequate time to apply for the position. Recruiting efforts cannot be made more than 6 months (180 days) prior to filing the PERM labor certification application. This is to ensure no new applicants exist. The employer must keep all of the documents showing proof of the recruitment process for up to 3 years in case of an audit by the DOL.
STEP 1: PERM Labor Certification (Form ETA-9089)
If the employer completes the recruitment process without finding a qualified American worker, it can complete and submit Form ETA-9089, Application for Permanent Labor Certification. This application is submitted to the DOL either electronically or by mail. There is no filing fee for this application, however, the employer must pay for the fees associated with the recruiting process. Any fees incurred throughout the PERM labor certification application process are the responsibility of the employer. If the Department of Labor does not approve it, you may not continue with the green card application process. An approved PERM labor certification is valid for 180 days.
The total time it takes for your PERM labor certification application to be approved will depend on a variety of factors. Some of these factors include the time of year when you apply, backlogs being experienced by the DOL, and if the application is subject to an audit. PERM applications that are not subject to an audit usually take around 6 months for certification. Audits can add another 1 year to this processing time.
STEP 2: Petition for Alien Worker (Form I-140)
After the DOL approves the PERM labor certification application, the petitioning employer can file Form I-140, Petition for Alien Worker before it expires. This is the second step in applying for a green card through employment. Form I-140 is submitted to the United States Citizenship and Immigration Services (USCIS). The current USCIS filing fee is $700.
STEP 2: Application for Adjustment of Status (Form I-485) or Consular Processing
Your priority date is assigned by USCIS on the day the petitioning employer files Form I-140, Petition for Alien Worker is filed with USCIS. The DOL publishes a visa bulletin every month indicating Dates for Filing and Final Action Dates. The Dates for Filing indicate when the employee can file Form I-485, Application for Adjustment of Status if the employer is lawfully in status in the Unites States, with certain exceptions, or file for Form DS-260, Application for Immigrant Visa with the National Visa Center if the employee is outside of the U.S. and must consular process. The Final Action Date indicates when a visa will become available for the job category and country of origin for the employee. The wait for a visa can vary from being immediately current to longer than 11 years.
DOL Audits
Audits can be targeted or random. Targeted audits occur when the DOL has concerns about the employer's PERM labor certification application. This can be because of inconsistencies in documentation provided or a failure to provide enough information to prove that you meet the requirements for an approved PERM labor certification. An immigration attorney can help reduce the possibility that an employer will be subject to targeted audits.
The DOL will randomly audit some applicants to ensure that the PERM labor certification process is effective. There is nothing that can be done to prevent random audits. For this reason, it is extremely important that the petitioning employer keep all supporting PERM documents on file for up to three years. If an employer is selected for an audit, it will have 30 days to respond with the requested information.
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