PERM Labor Certification

PERM Labor Certification

PERM is the process for obtaining labor certification, which is the first step of getting an employment-based green card (permanent residence) in United States.

Therefore, it is called PERM labor certification.

Generally, there are three steps in getting an employment-based green card:

  1. The employer gets the PERM Labor Certification, unless waived or exempt for certain categories.
  2. The employer files for Form I-140, Immigrant Petition for Alien Worker.
  3. When the priority date is current, the beneficiary files for either Form I-485, Adjustment of Status in the U.S., or gets an Immigrant Visa at the U.S. Embassy / Consulate abroad.

PERM labor certification is primarily designed to protect the interest of American workers, where the employer proves to the Department of Labor that they have a permanent full time job available, qualified and willing American workers are not available to do the job, and they will pay at least the prevailing wage to the foreign worker when hired.

PERM stands for Program Electronic Review Management. Labor Certification (LC) is entirely different from the Labor Condition Application (LCA). LC is for getting a green card, and LCA is for getting an H1B visa. An LCA is much easier and faster to get than an LC.  A PERM labor certification is for the future job that the beneficiary will do after the permanent residence is approved. If the beneficiary is currently working for the same employer on an H-1 or L-1 visa, for example, then that is for an entirely different job.  Therefore, it is technically possible to work for a different employer while the person is on H1 with some other company. However, for all practical purposes, it is extremely unlikely to find an employer who would file for the person’s greencard when they are not working for the sponsoring employer.

The PERM labor certification process assures that the employers are not hiring foreign workers at lower wages that would jeopardize the jobs of American workers and / or bring down their wages.

The PERM labor certification application is a multi-step process that is always done by the employer and not by the employee. However, it is important for an employee to understand the process so that they know what is going on. The Employer must pay for all the expenses for the PERM labor certification expenses, and the employee cannot pay for the same.

Getting a labor certificate approved does not change the person’s non-immigrant status. They are still on the same non-immigrant status.

Ability to Pay

The employer needs to demonstrate that the company is financially sound, and they can afford to hire the employee. The employer may have to show the company’s finances. The financial ability to pay must exist at the time of filing the labor certification and must continue to exist until the time the employee actually gets their green card.

PERM Labor Certification Process

There are several steps involved in the PERM labor certification process:

  • Step 1: Define Job Duties and Minimum Requirements

    The employer must define the job duties and minimum requirements of the prospective job position. At the time of filing the PERM Form 9089 in step 4 below, the employer would need to attest that:

    1. These are the actual minimum requirements for this specific position; and
    2. All others in the group, who perform substantially the same job duties, also met these same minimum requirements prior to being hired into that position. In other words, no one was hired with less than the stated minimum requirements.

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      These job duties and minimum requirements for the position and work location must be mentioned at the time of submitting a prevailing wage request, as described in the next step.

  • Step 2: Submit a Prevailing Wage Request (PWR) to the Department of Labor (DOL)

    With the job duties and minimum requirements defined at a given work location, the employer would submit a Prevailing Wage Request (PWR) to the Department of Labor (DOL).

    Once it is processed, the DOL will provide the employer with a Prevailing Wage Determination (PWD), which is the minimum wage that must be paid by an employer to the alien worker for the job once the permanent residence is approved.

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    In case the PWD is unacceptable to the employer, they may ask for redetermination, but this will cause delays.  A well-crafted job duties and minimum requirements should prevent such issues.

  • Step 3: Test the Labor Market with Recruitment

    Once the Prevailing Wage Determination is provided, the employer must run advertisements and conduct recruitment to see if there are any qualified and willing American workers available to hire.

    The employer must file a job order with the State Workforce Agency (SWA) and run multiple advertisements for the job position. Newspaper ads for the offered position must be run in the major Sunday newspaper in the area on two different days. Additionally, for professional positions, the employer must use three additional recruitment methods.

    The employer must timely respond to any job applications or resumes submitted by candidates. After running the last advertisement, a 30-day minimum waiting period applies before the employer can file a PERM Form 9089.

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  • Step 4: File PERM Application and get Approval

    PERM Form 9089 must generally be filed with the Department of Labor (DOL) along with the summary of job requirements, recruitment, and the beneficiary qualifications. However, for Schedule A Occupations, it must be filed with the USCIS Service Center.

    Due to there being a higher volume of applicants in comparison to the annual quota in a given category, the DOL uses the priority date, the date the DOL receives the PERM application, to determine the beneficiary’s place in line to receive a green card. The last step of receiving a green card can’t be filed until the priority date is current.

    Once the DOL processes and approves the PERM, the employer receives the Certified PERM. Once the PERM is certified, the employer must file for a Form I-140, Immigrant Petition for Alien Worker with the certified PERM enclosed within 180 days. Otherwise, the PERM will expire.

    It takes at least four to six months for the DOL to certify the PERM if it is not audited. Audited PERMs take a significantly longer duration. Around one-third of PERM labor certification filings are audited, but that can vary.

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    Effective 2007, employers are not allowed to substitute a beneficiary for a certified PERM. In other words, the PERM is certified only for the combination of a sponsoring employer and a specified alien / beneficiary.

PERM Labor Certification Documentation

The employer must keep the following documentation on record for five years:

  • Job Duties and Minimum Job Requirements
  • Prevailing Wage Request and Prevailing Wage Determination
  • Local Labor Market Analysis – Recruitment report as evidence that U.S. workers are incapable of or ineligible for the job
  • Job Orders
  • Ads – Newspaper, online, and others
  • Complete Form ETA 9089
  • Certified PERM
  • Immigration Petition (I-140 and supporting documentation)

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