PERM labor certification

What is PERM labor certification for?

PERM labor certification exists to protect the US labor market. Before an employer can sponsor a foreign worker for most green cards, it must satisfy the Department of Labor on two points. No qualified US worker can be available for the job, and hiring the foreign worker must not lower wages or working conditions.

It is the first of three stages for most employer-sponsored employment immigration cases. After labor certification comes the Form I-140 immigrant petition with USCIS, and then the final green card application. The date the Department of Labor receives Form ETA-9089 becomes the worker’s priority date. That date decides the place in the queue.

What are the steps in the PERM process?

The PERM process has four stages: defining the job, obtaining the prevailing wage, recruiting, and filing. Each has its own rules, and the order matters.

1. Defining the job The employer and the firm write the duties and the minimum requirements. The requirements must be those normally required for the occupation. The worker must also have met them before joining the employer, unless the job is substantially different.
2. Prevailing wage The employer requests a prevailing wage determination on Form ETA-9141. The Department of Labor’s National Prevailing Wage Center issues it. The employer must offer at least that wage.
3. Recruitment The employer advertises the job in the ways the regulations require and reviews every application in good faith.
4. Filing If no qualified US worker applied, the employer files Form ETA-9089 electronically through the Department of Labor’s FLAG system. It then waits for a decision.

What recruitment does PERM require?

PERM labor certification requires a fixed set of recruitment steps, carried out within a set window before filing. The steps depend on whether the job is a professional one, meaning it normally requires a bachelor’s degree or higher.

• For every job A job order with the state workforce agency for thirty days. Two print advertisements on two different Sundays in a newspaper of general circulation in the area. A notice of filing posted at the worksite for ten consecutive business days.
• For professional jobs Three additional steps chosen from a list in the regulations. Examples include the employer’s website, a job search website, a job fair, campus recruiting or an employee referral program. The employer may also replace one Sunday advertisement with one in a professional journal.
• The timing window Most recruitment must take place within the 180 days before filing. The employer must then wait at least thirty days after the last required step, so that late applicants can respond.

The employer keeps a recruitment report and the supporting documents for five years. In a PERM audit, these are what the Department of Labor asks for.

How long does PERM labor certification take?

PERM labor certification usually takes well over a year from the wage request to certification. An audit can make it considerably longer. The fixed recruitment periods account for only a part of that; most of the time is the Department of Labor’s own processing.

There is no premium processing for PERM. Once certified, the labor certification is valid for 180 days. The employer must file the Form I-140 within that time or the certification expires. Premium processing is available for the I-140 itself.

The Department of Labor publishes its processing times online, and they change frequently. At the consultation, the firm gives a realistic range based on current published times rather than a single date.

For a worker on an H-1B, timing matters. Filing PERM early enough allows H-1B extensions beyond the usual six-year limit, as the H-1B visa page explains. L-1B employees follow the same route, as the L-1 intracompany transfer page describes.

What does an employer commit to in PERM?

An employer that files PERM commits to a genuine, permanent, full-time job offer at no less than the prevailing wage. It also commits to paying the costs of the labor certification itself.

The PERM regulations prohibit the employer from seeking or receiving payment from the worker for attorney fees, advertising or other certification costs. The job must be open to US workers. The employer also attests that it has not laid off workers in the same occupation without notifying them of the opening. The job need not start until the government grants the green card, but the offer must be real throughout.

Employers must also be able to pay the offered wage from the priority date onward. USCIS checks this at the I-140 stage using tax returns, annual reports, audited financial statements or payroll records.

What does PERM mean for the sponsored worker?

For the sponsored worker, PERM labor certification is mostly a period of waiting while the employer does the work. Still, a few things are in your hands.

You provide the evidence of your qualifications: degrees, transcripts and experience letters. Each letter comes from an earlier employer, on company letterhead, and describes your duties and dates. These letters are often the hardest documents to obtain, especially from employers abroad or companies that no longer exist. Starting early helps.

You also need to keep your current status valid throughout. A pending labor certification does not by itself give you permission to stay or work. You do not take part in the recruitment, and the regulations bar you from interviewing or assessing applicants. Your spouse and unmarried children under twenty-one are not named in the labor certification. Instead, they join the green card case at the final stage.

What goes wrong with PERM cases?

PERM is a technical process, and many denials come from small procedural errors rather than from the merits.

• Requirements tailored to the worker Some requirements go beyond what is normal for the occupation, or only the sponsored worker could meet them. These invite an audit and need a business-necessity justification.
• Experience gained on the job Experience gained with the sponsoring employer usually cannot count toward the requirements. The exception is an earlier role that was substantially different.
• Mismatches across documents The advertisements, the wage request and Form ETA-9089 must describe the same job consistently. Small inconsistencies can be fatal.
• Weak review of applicants Rejecting a US applicant who meets the minimum requirements undermines the whole recruitment. So does failing to contact applicants promptly.

The certifying officer can reconsider a denied labor certification, or the Board of Alien Labor Certification Appeals can review it. However, starting again with a corrected process is often quicker.

What happens after PERM is certified?

After certification, the employer files Form I-140 with USCIS in the EB-2 or EB-3 category. It attaches the certified Form ETA-9089, evidence of the worker’s qualifications and evidence of ability to pay.

Once the priority date is current for the worker’s category and country of birth, the worker files for adjustment of status inside the United States, or completes the case at a consulate abroad. The EB-1, EB-2 and EB-3 green cards page explains the categories and the queue.

What does PERM labor certification cost with this firm?

The firm quotes PERM labor certification as a flat fee, agreed in writing with the employer before any work begins. That is because the regulations require the employer to bear the cost. The fee does not change because the case takes longer than expected. Recruitment advertising is also a cost the employer bears. USCIS sets the fees for the I-140 that follows, and they are due separately.

The fees and consultations page explains how quotes work, and the first consultation, for employer or worker, is free.