A Permanent Labor Certification for EB-2 visas is a process United States-based employers must obtain for their EB-2 job applicants  – in order for the foreign national to ultimately be offered the job, as well as U.S. residency. Commonly referred to as PERM, the process involves testing of the labor market in the U.S. by the sponsoring employer. 

As an EB-2 is designated only to individuals with advanced degrees or exceptional ability in their occupations, a Labor Certification is indeed required for an EB-2 visa. (This does not include EB-2 National Interest Waiver (NIW)applicants.

What is a Labor Certification for an EB-2 Visa?

A (PERM) labor Certification is a process done through the Program Electronic Review Management (PERM). It is about a two-year process where the sponsor must diligently explore and test the U.S. labor market, seeking talented and qualified U.S. applicants who meet the role qualifications for the specified role. If there weren’t any found by the end of the evaluation, that employer must then present compelling evidence of the absence of any candidates who possess the required qualifications to the U.S. Department of Labor (DOL). 

Ultimately, it is the responsibility of the U.S.-based employer to file PERM-based EB-2 applications, not the employee.

Labor Certification For EB-2 Visas

There are two subcategories of an EB-2 visa, the PERM-based EB-2 and the EB-2 NIW. Since EB-2 visas are designed for individuals with either advanced degrees or exceptional ability in their occupations, they must apply for jobs that require those specific degrees and ability.

Such EB-2 professions include the arts and sciences, business, technology, sports, education, or medicine.

As previously highlighted, EB-2 visa seekers are typically required to have either of the following:

  • Advanced Degree: A Bachelor’s degree with five years of post-graduate work experience in the related field, a Masters, or a Doctorate
  • Exceptional Ability: Expertise in their profession which is significantly higher than what is ordinarily encountered in the sciences, arts or business

Under normal circumstances, an EB-2 visa requires a Labor Certification. However, an EB-2 National Interest Waiver does not, as such applicants are ones who petition for a waiver of the Labor Certification process.

PERM Requirements For An EB-2 Visa

There are several prerequisites both the applicant and their visa sponsor must meet. They are as follows: 

  • PERM-Based EB-2 visa seekers must already have a job offer in the U.S., from a U.S.-based sponsoring employer
  • The applicant must hold a Master’s degree or higher, or
  • If the applicant has a Bachelor’s, he or she must also have five years of work experience, post-graduation
  • He or she must also meet the skills and experience requirements for the job
  • The U.S. position must require a higher education degree

Additionally, sponsoring employers must meet the following requirements:

  • Be qualified as a U.S. employer 
  • Have a valid Federal Employment Identification Number (FEIN) 
  • Have a location within the U.S. where U.S. workers can be referred

If the foreign professional meets all of the above, and is awarded the Labor Certification, they will ultimately receive an EB-2 visa. Moreover, he or she will then receive a green card in the U.S. to be legally permitted to live and work in the U.S. to further their occupational endeavors.

PERM Application Process

To obtain a permanent labor certification, the sponsoring employer must file an Application for Permanent Employment Certification (Form 9089). In order to do so, the sponsor must first meet several requirements by demonstrating each of the following:

  • The job was available to U.S. workers
  • The wages of the position are equal to, or greater than, the prevailing wages for the particular occupation
  • The sponsoring employer is capable of putting the employee on its payroll before, or the day of, his or her arrival in the U.S.
  • U.S.-citizen applicants were denied solely for lawful reasons
  • Wages for the position do not depend on any bonus, commission or financial incentive
  • That does not include such situations where the sponsoring employer can guarantee that the foreign national will continue to earn a wage that is equal to, or greater than, the prevailing wages
  • The sponsoring employer must have the funds to pay the wages it has promised 
  • The sponsoring employer did not discriminate against applicants based on age, sex, religion, race, creed, color, nationality, disability, or citizenship
  • The particular job was not open, or posted, due to a strike or labor stoppage
  • The working conditions and the terms of employment meet all relevant legal standards within local, state and Federal statutes
  • The particular job is a full-time and permanent one
  • The sponsoring employer is a person or entity different than the foreign national

Note: Sponsoring employers must request a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA).

The process is more detailed below:

First, the sponsoring employer initiates the Labor Certification through PERM.

Second, the DOL certifies (at their discretion) the insufficiency of available, willing, able, and qualified U.S. workers, and that employing a foreign national would not affect the wages or working conditions of an otherwise employed U.S. worker in any negative manner.

Third, once the sponsoring employer receives the Labor Certification from the DOL, they can then file it along with an Immigrant Petition for Alien Workers (Form I-140) with the United States Citizenship and Immigration Services (USCIS). This has to be done within 180 days following the PERM approval date. Submission outside of that will result in a certification expiration, therefore the DOL filing process will need to be redone.

Fourth, a USCIS officer reviews the petition and subsequently determines whether the posted position corresponds to the job previously assessed by the DOL’s Employment and Training Administration (ETA), and whether the foreign professional is qualified to perform the job duties of the position.

Lastly, the EB-2 visa is granted to the applicant. Their visa is then sponsored and he or she completes the permanent residency process. All while being permitted to legally work in their role.

Pre-Filing Recruitment

Before the employer can file their application, it must follow these recruitment steps:

  • Place a job order with the SWA for 30 or more days 
  • Print two or more advertisements in two separate Sunday editions of any popular newspaper, and use three of these recruitment methods:
    • College campus placement programs
    • Campus recruitment at universities
    • Job fairs
    • Job listings on the company website
    • Incentives for referrals from existing employee
    • Recruitment agencies
    • Job search sites such as LinkedIn or Indeed
    • Trade organizations
    • Radio or TV ads
    • Local and ethnic newspapers

The recruitment activities must be during the 6 months preceding, and not less than 30 days prior the filing date.

PERM Labor Certification Process

Before the employer submits a PERM application online, it must register an account with Login.gov as well as create a FLAG Account.

The DOL’s PERM Process website, outlines the basic steps for the process. 

Sponsoring employers must comply with the four following steps:

  1. Identify a permanent full-time job opportunity with the allowance of foreign workers
  2. Request (and receive) a Prevailing Wage Determination from the NPWC
  3. Complete a Pre-filing Recruitment and Notice of Filing (when applicable)
  4. Submit the PERM application

In identifying a permanent full-time job opportunity, the sponsoring employer must establish the minimum requirements and the duties required for the job.

It is important to note, the job opportunities are typically categorized by the type of occupation, and are regulated by the DOL. Professional and non-professional occupations, college or university teachers, and professional athletes.

Notice To Be Given by Employers

Before the employer submits a PERM application, it is vital that the sponsor gives notice (well in advance) to the current employees’ union representative that it is doing so, or by posting the notice in their office if no representative exists. 

The notice must satisfy the following requisites:

  • Be posted at least 30 days, or up to 180 days before the employer intends to submit the PERM application
  • Contain the wages offered 
  • Include the address of the certifying officer who will be processing the application
  • Announce that all evidence related to the PERM application is to be sent directly to the certifying officer, and that such evidence can be submitted by anyone
  • Announce that the PERM application will soon be submitted

PERM Cost

There is no fee for filing Form 9089, however there are several other associated costs the sponsoring employer will need to prepare for. They are as follows:

  • Two ads for printed media: Generally $500 for each one
  • Filing fees for all forms submitted to the USCIS: Form I-140 is $700

Oftentimes, sponsoring employers elect to hire an immigration lawyer, which usually costs between $2,000 and $6,000 USD.

PERM Processing Times

As of 06/30/2023, the PERM processing times are currently taking around 300 days. Updated timeframes can be found on the DOL website.

Sponsoring employers who desire a quick processing time can file the PERM application on the Permanent Online System. Doing so also allows the employer to not only quickly fill out several applications with the same information, it allows them to stay informed of their case’s progress on the PERM tracker. Filing electronically also enables the applying employer to receive a must faster PERM status confirmation.

Conclusion of What Is a Labor Certification and Is It Required for an EB-2?

As the EB-2 visa is exclusively designated for foreign individuals with advanced degrees or exceptional abilities in their fields, obtaining a Labor Certification is a necessary procedure for such EB-2 applicants. Furthermore, it is an essential requirement for U.S.-based sponsoring employers who seek to hire a foreign national. 

Known as PERM, the process begins with the sponsor conducting a labor market test within the U.S. for qualified U.S. workers. When none are identified, the sponsor must obtain a Labor Certification by the DOL, which ultimately certifies the lack of able, available, willing, and qualified U.S. workers for the particular job opportunity. As well as demonstration that employing a foreign worker does not, negatively affect the wages or working conditions of an otherwise employed U.S. worker.