PERM LABOR CERTIFICATION 2023

The Department of Labor established the Program Electronic Review Management System (PERM) Labor Certification on March 28, 2005. Here, you can find comprehensive information about the PERM program, including processing time, steps, and the application process.

What is PERM Labor Certification?

PERM serves as the initial step in the employment-based lawful permanent residency (green card) application process. Its main purpose is to protect U.S. workers and the job market by ensuring that qualified foreign workers do not take positions that could be filled by available U.S. workers.

Under PERM, applicants must submit a comprehensive application to the Department of Labor, showcasing their exceptional skills that cannot be replicated by a qualified U.S. worker. Both the EB-2 and EB-3 visas necessitate a PERM Labor Certification before applying for the employment-based immigrant visa, unlike the EB-1 First Preference Visa.

For EB-2 Visa applicants, the PERM Labor Certification can be waived through the National Interest Waiver (NIW) if they can demonstrate that their employment would significantly contribute to the national interest of the United States.

PERM Labor Certification Requirements

Before commencing the PERM process, certain conditions must be fulfilled:

1. You must have a valid permanent job offer from a U.S. employer.
2. The offered wages must meet or exceed the DOL prevailing wage, which will be determined based on the specific position.
3. An assessment of the local job market is necessary to demonstrate that qualified U.S. workers are not available to fill the position. This requires evidence that no suitable native candidates can meet the job requirements. If requested, additional documentation related to recruitment efforts should be provided.
4. The U.S. employer is responsible for creating and maintaining an audit file with further evidence of recruitment endeavors.

PERM Recruitment Steps

The PERM regulations require that recruitment procedures for both professional and non-professional positions must be finished within six months of submitting the PERM application.

Professional vs. Non-Professional

For professional occupations, a bachelor’s degree or its foreign equivalent is typically required. Your immigration attorney can assist in determining if your degree qualifies for this category.

The mandatory steps for recruitment are as follows:

1. Place a job order with the State Workforce Agency for 30 days.
2. Advertise the job in 2 consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment. Alternatively, a relevant professional journal can be used in place of 1 Sunday newspaper ad. (If the job opportunity is in a rural area without a Sunday newspaper edition, use the one with the “widest circulation” in the area.)

In addition to the above, a combination of any 3 of the following recruitment methods can fulfill the requirement for professional positions:

• Job fairs
• Employer’s website
• Job search websites (e.g., monster.com, indeed.com)
• On-campus recruiting
• Trade or professional organizations
• Private employment firms
• Employee referral program with incentives
• Campus placement offices
• Local and ethnic newspapers
• Radio and television

To avoid potential audit issues and expenses, your employer should keep detailed records of payment receipts and online correspondence as evidence of their recruitment efforts during the process.

Non-Professional Jobs

To fulfill the recruitment process for non-professional positions (those not requiring a degree), the employer needs to comply with only two steps:

1. Place a job order with the State Workforce Agency for 30 days.
2. Advertise the job in 2 consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment.

These steps must be completed at least 30 days but no more than 180 days before filing the application. For both professional and non-professional positions, the employer must wait an additional 30 days after the recruitment period before filing the ETA 9089. This waiting period ensures that any qualified U.S. workers have a reasonable timeframe to respond to the job ads or job order.

PERM Labor Certification Documentation

Evidence demonstrating the incapability or ineligibility of U.S. workers to perform the employment is required for the Local Labor Market Analysis.

The following approved documented evidence is necessary:

1. A prevailing wage request, where the DOL determines the prevailing wage based on the position’s location and requirements.
2. Job orders.
3. Newspaper ads.
4. Prints of website job ads.
5. U.S. employer audit file.
6. Immigrant petition.
7. Completed Form ETA 9089.

PERM Process

The PERM process involves several steps, and below, you will find a detailed explanation of each:

1. The U.S. employer conducts permissible recruitment efforts to analyze the current U.S. labor market. All efforts are documented and must be ready for inspection by the Department of Labor (DOL).
2. The U.S. employer submits the Labor Certification application (Form ETA 9089) to the Department of Labor, either electronically or by mail.
3. The DOL verifies that the applicant possesses a skill that is unobtainable by U.S. workers or that the job cannot be performed by a U.S. worker. The U.S. employer is responsible for providing evidence that the applicant’s employment will not negatively impact U.S. workers in related fields. This verification process may take 120-180 days, unless the case is selected for an audit by the Department of Labor.
4. If the U.S. employer’s petition is chosen for auditing, they must respond with supplementary documentation within 30 days of the request.
5. Once the Labor Certification is approved, the U.S. employer must file an immigrant petition with the U.S. Citizenship and Immigration Services (USCIS) before the Labor Certification expires.
6. If the employer fails to complete the immigrant petition before the deadline, the case will be labeled as abandoned.
7. Upon approval of the I-140 immigrant petition, the applicant must register for Permanent Residence. If the applicant is already in the U.S., they should file Form I-485 to adjust their status. If the applicant is outside the U.S., they can pursue consular processing and initiate the process by completing the DS-260 online immigrant visa application.

PERM Processing Time

The overall processing time for PERM ranges from 430 to 700 days, encompassing the entire process from initiation to approval. Here’s a breakdown of the estimated duration for each step:

1. Prevailing Wage Determination Process: This step involves the DOL determining the prevailing wage, and it typically takes around 160 to 180 days.
2. DOL Analysis: After the prevailing wage has been set, each case undergoes expert analysis by the DOL for accuracy, and this step can be one of the longest, averaging between 150 to 190 days.
3. Recruitment Process: Following the prevailing wage determination, you must start the recruitment process, which typically takes about 25 to 55 days.
4. Decision on Form-9089: The DOL takes approximately 30 to 90 days to make a decision on your Form-9089.
5. Audit (if applicable): If your Form-9089 is audited, you’ll need to provide additional evidence and respond to inquiries. On average, the audit process takes between 250 to 280 days to complete.

Rejecting Applicants

Your employer must prepare a recruitment report detailing the reasons for rejecting all U.S. applicants. These reasons must be lawful and non-discriminatory. Although individual applicant identification is not mandatory, it may be requested during an audit.

PERM Audit

In the event that the DOL or Certifying Officers find the provided information unsatisfactory, your employer may be at risk of receiving a targeted audit. This could result from inconsistencies in documentation, suspicion regarding the availability of qualified U.S. workers, or an incomplete or unsatisfactory recruitment report.

Additionally, the DOL conducts random audits that cannot be anticipated or avoided. These audits aim to ensure the integrity of the PERM system. While seeking assistance from an immigration attorney can help mitigate the possibility of a targeted audit, random audits cannot be predicted.

If your employer is selected for an audit, the processing time can significantly increase, extending from about six months to over one and a half years in some cases. It is crucial to note that once an audit notice is issued, your employer must respond, even if the PERM application has already been withdrawn.

PERM Cost and Green Card Processing Fee

Regarding PERM costs, the Department of Labor does not charge a filing fee for the PERM petition. However, the Labor Certification cost includes more than just the filing fee. There will be additional expenses related to the recruitment process, such as placing ads and conducting interviews with potential U.S. candidates. It’s essential to note that the entire PERM application process is the responsibility of your employer.

When it comes to the green card processing fee, the USCIS requires a filing fee of $580 for the I-140 petition. This fee must be paid by your employer, not by you. The premium processing fee can be paid by either you or your employer.

The costs for adjusting your status vary based on your age. For a better understanding of the I-485 filing costs, you can refer to the chart under “Special Instructions” on the USCIS website.

PERM and I-140

PERM and the I-140 Form are closely tied to the entire process of hiring foreign workers. Once your employer’s PERM Labor Certification is approved, they will need to submit the I-140, Immigrant Petition for Alien Worker. The worker is not required to submit the form; it is solely the employer’s responsibility.

Upon approval of Form I-140, USCIS will issue an Approval Notice to you, and you can initiate your green card application process.

PERM Visa or PERM Green Card: What is it?

There is a common misconception about the PERM Labor Certification. Many people mistakenly refer to it as a PERM Visa or PERM Green Card. However, it’s essential to understand that the PERM is not a visa, and it doesn’t grant direct access to the U.S. It serves as the initial step in obtaining an immigrant visa (green card). Once your PERM is approved, your employer can file a green card petition on your behalf.

After your I-140 petition is approved, you must wait for a visa number to become available for your priority date. The waiting period can vary depending on the type of employment-based green card you are applying for.

Once a visa number becomes available, you can apply to adjust your status or obtain a green card from a U.S. Consulate or Embassy in your home country. Your green card, not any PERM visa, will provide you with legal residence in the U.S.

How Truely Wonder Can Help:

We, at Truely Wonder, have experienced lawyers who can assist you with the required documentation to meet critical deadlines for your immigration process.

Our PERM Labor Certification attorneys specialize in providing expert advice for complex situations, ensuring that U.S. employer and applicant qualifications are verified thoroughly.

Moreover, our immigration lawyers are knowledgeable in handling communication channels between USCIS and the Department of Labor, streamlining the process and ensuring a smooth transition.

In case you receive an audit request from the Department of Labor, our immigration lawyers will promptly prepare and submit an appropriate response with the necessary documentation, alleviating any concerns.

To seek our professional assistance and schedule a consultation, please fill out our contact form today. We are here to help you navigate the immigration process with ease and confidence.