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PERM Labor Certification

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What is The PERM Labor Certification?

The Program Electronic Review Management (PERM) Labor Certification is a process by which a potential job position of a foreign applicant is reviewed by Department of Labor (DOL) to verify that foreign worker is not filling a position that could otherwise be filled by a qualified U.S. worker. This is generally the first step in the process of applying for employment-based lawful permanent residency or a green card. Many, but not all, employment-based visas require a PERM Labor Certification. Employment-based preference categories such as the EB-2 (except NIW) and EB-3 require PERM Labor Certification. The Labor Certification requirement is not required for an EB-2 National Interest Waiver (NIW), EB-1, EB-4, or EB-5 petitions.

The PERM Labor Certification process is carried out before a US employer can file a petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS). This means that an application for labor certification is submitted to the DOL. The DOL not only certifies that there are no qualified US workers for the intended job opening, but also that the pay for the position is consistent with prevailing wage for that occupation and that the foreign worker employed in the position will not adversely affect wages/ working conditions of similarly employed U.S. workers. As part of the PERM Labor Certification process the sponsoring employer must engage in various recruitment activities to ensure that there is no available US worker for the position. If, and when, no qualified, US worker is available for the intended position, the employer can proceed to submit the application for PERM labor certification.

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PERM Labor Certification FAQs

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The DOL issues a prevailing wage determination, which has a validity period as designated on the ETA-9141 determination document. The validity period will be at least 90 days but will not be more than 1 year.

Simply lacking one of the skills listed in a job description may not be enough to reject a potential US worker for the intended position. However, if the lacking skill is critical to the job function and training that employee in that skill would be an unreasonable burden in terms of time and resources, the employee could potentially be rejected. All related documentation and explanations of any such rejections must be recorded and available in case of audit.

The total cost for the PERM Labor Certification process can vary depending on the company and specifics of the position. Legal fees and costs associated with job placement ads can run several thousand dollars. Although there are no government filing fees for the PERM application, USCIS fees will also need to be accounted for once the PERM process is complete and filing the I-140, Immigrant Petition for Alien Workers becomes necessary. Foreign workers cannot, by law, pay any associated legal fees or costs associated with the PERM application; employers mist bear all costs. It is also important to remember that employers must show their ability to pay the prevailing wage as determined by the DOL until the foreign worker adjusts status to legal permanent resident.

Electronically filing the PERM Labor Certification application is often more efficient and will result in an earlier priority date. Sending applications through the mail is more time consuming not only because of the additional time the application is in transit, but also because the information will have to be entered into the database manually once it arrives. Mailed cases can result in an additional 2-3 months of processing time. It is important to note that both electronic and mailed applications are considered equally and there is no preferential consideration given to one or the other.

Once a labor certification is approved it will be valid for 180 days. During this 180 day time period, the I-140, Immigrant Petition for Alien Workers form must be completed and submitted to USCIS. Any such filing after the 180 validity time period will be rejected.

If the applicant discovers a mistake on their application the only remedy would be to withdraw the application and resubmit a new, corrected one. This is because once an application is submitted to the DOL it is considered final and changes cannot be made to the submitted application. Withdrawing an application can not only extend the total time of the process but there are risks for validity periods to expire and can result in the whole PERM process needing to be repeated. An experienced immigration attorney should be utilized for the PERM process to minimize risks for such mistakes.

While both professional and non-professional job positions qualify for PERM Labor Certification, part-time jobs do not. All jobs must be permanent, full-time positions. The foreign worker, however, is not required to work full time at the time of application as the application is establishing a future position for the foreign worker.