Overview of PERM Process (Obtaining Labor Certification)

Employment-Based Immigration

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Program Electronic Review Management (PERM) labor certification is the first step to obtaining an employment-based green card in the EB-2 or EB-3 category. The PERM labor certification, issued by the U.S Department of Labor (DOL), guarantees that foreign workers’ employment in the United States labor market will not come at the expense of similarly employed US workers. You must complete the PERM process before you can even apply for a green card.

Qualifications

You must qualify under the following standards before you can be issued PERM labor certification:

  • You must have a permanent, full-time job offer from a U.S employer.
  • Your wages must be at least the “prevailing wage” for US workers as defined by the U.S Department of Labor (DOL). The prevailing wage differs by job duties, geographic area, occupation, and other factors.
  • Your U.S employer must have completed a specific recruitment process, which process has failed to find qualified U.S workers for your position.
  • Your U.S employer must keep certain records of its recruitment efforts in a permanent audit file.

The PERM Labor Certification Process

The PERM labor certification process requires that your employer (i) make a “prevailing wage request” with the Department of Labor for the position that you will be offered (ii) conduct required recruitment activities for US workers, and (iii) apply for PERM labor certification–in that order.

Submitting a Prevailing Wage Request

Your employer must submit a “prevailing wage request” to the DOL via the FLAG website. This request must describe your job, in enough detail to allow the DOL to determine the prevailing wage. Information that your employer must file includes job qualifications, job duties, and worksite location. The DOL will use this information to issue a prevailing wage determination (PWD), which determines the minimum wage that your employer must pay you.

Conducting Required Recruitment Activities

Your employer may only submit a labor certification request to the DOL once it has conducted the required recruitment activities and finds that it cannot locate any able, qualified, and willing US workers willing to take the job opportunity. A “US worker” means a US citizen or lawful permanent resident.

Recruitment process for professional positions

Job requirements for professional occupations normally include at least a bachelor’s degree or its foreign equivalent. Recruiting a US worker for a professional position requires your employer to:

  1. Place a full-time job order with the State Workforce Agency (SWA) under your state department of labor, for 30 days.
  2. Publish the job opportunity in two consecutive Sunday editions of a newspaper that is widely read in the area of intended employment; OR place one such ad plus one ad in a relevant professional journal.
  3. Use any three of the following recruitment methods:
    • College or university placement office;
    • Employee referral program;
    • Your employer’s website;
    • A job fair;
    • An employment website (e.g. upwork.com);
    • An ethnic newspaper;
    • Campus recruiting;
    • A private employment firm;
    • A radio or TV ad;
    • A trade organization; or
    • A professional organization.

Recruitment for non-professional occupations

If your position does not require a bachelor’s degree (regardless of whether you actually possess one), your position will be classified as a non-professional position, and your employer will be required to complete only the following two recruitment steps:

  1. Place a full-time job order with the appropriate SWA for 30 days;
  2. Publish the job opportunity in two consecutive Sunday editions of a newspaper that is widely read in the area of intended employment.

Requesting Labor Certification

Recruiting efforts must be conducted between 30 days and 180 days before the filing of your PERM application. 30 days after the end of the recruitment period, your employer can submit ETA Form 9089, so as to ensure that any qualified U.S. workers have time to respond to your recruiting efforts.

Filing ETA Form 9089 is the last step in the labor certification process. After your employer files ETA Form 9089 with the USCIS, the DOL must certify, based on the information that your employer-supplied, that (i) there are not sufficient US workers who are able, willing, qualified, and available to accept the job at the prevailing wage, and that (ii) to hire a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Documentation

Your employer does not have to submit recruiting records, but it must keep this documentation available upon request for five years in case of a DOL audit. The DOL performs audits from time to time, and there is no guarantee that your employer will not be subject to one of them.

Supporting documents evidencing recruitment activities include:

  • Website printouts;
  • Newspaper tear sheets;
  • Job orders;
  • Payment receipts;
  • Online correspondence; and
  • Other documentation as requested or necessary.

Processing times

PERM applications take time. It takes about 90 days to process an electronically filed PERM application, but it can take several months (at least 30 additional days) if the filing is audited by the DOL.

Context: After Foreign Labor Certification

After the DOL approves your foreign labor certification application, your employer should file an I-140 immigration petition with the USCIS within 180 days of approval of your labor certification.

Once the USCIS approves your I-140, you can either:

Apply for an employment-based immigration visa at a US embassy or consulate overseas; or
File Form I-485 to adjust your immigration status to permanent resident.

Which of the above options you select depends on whether you are inside or outside the US at the time of filing.

EB-2 Status

EB-2 status offers an immigrant visa and a green card, but it is one of the most difficult US immigration statuses to obtain. The three pathways for obtaining permanent residence through EB-2 status are (i) qualifying as an “advanced degree professional”, (ii) possessing “exceptional ability”, or (iii) obtaining a National Interest Waiver.

“Advanced degree professional”

Normally, this pathway requires you to have earned an advanced degree, such as a master’s degree or a Ph.D. The job you are taking must require this qualification as well. In some cases it is OK for you to possess a bachelor’s degree plus five years of “progressive” work experience As usual, foreign equivalent degrees can qualify.

“Exceptional ability”

Although this is an inherently subjective determination, you must be able to show exceptional ability in science, art, or business that is beneficial to the US economy, culture, or educational system. Your ability must be, well beyond the level of ability that is normally encountered in your field.

National Interest Waiver

You may be granted a National Interest Waiver if your residence and employment in the United States will benefit the US enough to justify waiving the normal labor certification program requirement and granting you permanent residence directly. You don’t necessarily need an advanced degree or exceptional ability to qualify for a National Interest Waiver, because the determination is highly subjective.

You can obtain an employment-based immigrant visa using any of the three above-described pathways.

EB-3 Status

EB-3 status offers an immigrant visa and a green card to certain skilled workers, professionals, and unskilled workers. These terms are defined as follows:

  • “Skilled workers” are workers whose jobs require at least two years of experience or training to perform–in other words, they are not entry-level positions. Additionally, the job cannot be temporary or seasonal, as certain agricultural jobs are. Certain types of post-secondary education can be treated as “training” for the purpose of qualifying under EB-3 status.
  • “Professionals” are workers whose positions require at least a bachelor’s degree or its foreign equivalent.
  • The “unskilled workers” subcategory is for workers performing labor that requires less than two years of experience or training and is not seasonal or temporary. There is a cap of only 10,000 visas per year, meaning that applicants may have to wait years before their priority date arrives and allows them to obtain a visa.

How Our Immigration Attorneys Can Help You Obtain PERM Labor Certification

Numerous pitfalls await those who attempt to secure labor certification without the assistance of an experienced immigration attorney. Detailing your recruitment efforts is a particularly tricky matter that depends on many factors, including shifting political winds. Following are some tasks for which the assistance of an immigration attorney would be a good idea:

  • Stating the job requirements. You will need to consult with your attorney and let them help you draft this statement.
  • Determining whether further recruitment is necessary if the decision to recruit a foreign employee took place only after significant domestic recruitment efforts for the position occurred.
  • Responding to an audit. Audits can be expensive and time-consuming. When responding to an audit, every sentence has consequences, some of which may not be at all obvious.

Keep in mind that no attorney should be directly involved in designing or executing the recruitment process because this would cast doubt that the entire process might have been rigged. It might even trigger an audit.

Contact Us Today

Immigration law is a maze to the uninitiated. If you seek PERM labor certification, an experienced immigration lawyer can help guide you through the application process, maximize the odds against any unpleasant surprises and save you a lot of headaches. Contact the Herman Legal Group, LLC at 1-800-808-4013, or simply complete our online contact form to schedule a consultation with us. We look forward to working with you!

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