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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.

Steps of the PERM Labor Certification PRocess

To submit an application for PERM Labor Certification the employer must go through the following steps:

  1. Employers must present the job duties and minimum requirements for the position.
  2. Employers must submit a prevailing wage determination request for the DOL.
  3. A recruitment process for the position must then be carried out.
  4. PERM application is then submitted to the DOL electronically or via mail.

It is important to note that these steps along with the PERM Labor Certification processing can take 12+ months. It can be significantly longer if the case is audited. An attorney should be used for the application process to minimize risks of auditing.

Step 1

In the first step to the PERM Labor Certification process a sponsoring employer must first establish the specifics of the job position. The details to establish include the title, duties, experience, education, and other details of the position. The formulation of the job details must be done according to DOL requirements. The foreign worker must meet the job requirements and specifications when accepting the position. Should there be changes to these details at a later date, it could require that the PERM process be repeated. 

Step 2

The next step, after the establishment of the job position details, is to submit a request to the DOL for a prevailing wage determination for the job position. Prevailing wage determinations can take several months (4-5 months). The DOL will determine the minimum wage for the position that the employer must pay. The DOL makes the prevailing wage determination based on specifics of the position, geographic location, among other details. 

Step 3

The third step in the process requires a recruitment process to be carried out by the sponsoring employer. The employer must test the labor market to ensure that there are no available, qualified US workers for the position. Job placement ads are placed as per DOL regulations. This step can take at least 8 weeks/2 months or longer. Because the recruitment process can yield different and unexpected results if not done correctly, it is recommended that an immigration attorney handle the PERM process for clients.

Step 4

The fourth step occurs once it is established that no qualified US workers are available for the position. ETA Form 9089 is used to file the PERM application with the DOL. After the application is submitted, it can take many months for processing. Processing can take anywhere from 8 months to much longer if a case is audited.

What is the PERM Audit process?

A targeted PERM audit of the sponsoring employer can occur when the DOL finds inconsistencies, incomplete, or unsatisfactory information submitted with the PERM application. Random audits are also conducted at times. Random audits are relatively rare; while targeted audits are not prevalent, mistakes and problems on an application can increase these risks. To minimize risks of a targeted PERM audit an attorney should be utilized for the PERM application process. It is important to remember that any type of audit will likely increase the processing time significantly.

PERM Recruitment Process for professional and non-professional jobs

Both professional and non-professional occupation category job positions can be submitted for PERM certification. PERM recruitment steps are required for both but these steps can vary somewhat. 

Professional occupation category job positions

Professional occupations – which generally require a bachelor’s degree or higher or foreign equivalent – require the following steps during the recruitment process:

  1. A job placement must be made with the State Workforce Agency for a period of 30 days;
  2. A job placement ad must be made in at least two consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment. 
  3.  Alternatively, a job placement ad can be placed in one Sunday edition of a local newspaper with wide circulation in the area of intended employment AND one ad can be placed in a relevant professional journal. 
  4. Three additional recruitment methods must also be utilized and can include the following:
  • Employment firms
  • Third-party job search website or employer website
  • Trade/Professional organizations
  • Employee referral program
  • Radio and television
  • Additional recruitment methods are available and an experienced immigration attorney can discuss these options.

Non-Professional Jobs

Non-professional job positions – or jobs that do not require a higher degree — require the following steps during the recruitment process:

  1. A job placement must be made with the State Workforce Agency for a period of 30 days;
  2. A job placement ad must be made in at least two consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment. 

Both professional and non-professional job recruitment steps must be carried out  between 1-6 months before filing the PERM application with the DOL.  At least 30 days must pass after recruitment steps have ended before filing of the PERM application can occur.

Employer must keep all records associated with the recruitment process that must be presented in case of an audit. Records should include a report noting the lawful/non-discriminatory reasons why any US workers that may have responded to job placement ads were rejected. Records should be kept for at least 5 years.

PERM Labor Certification FAQs

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.

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