PERM LABOR CERTIFICATION
A Permanent Labor Certification is issued by the Department of Labor (DOL) to allow an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition, Form I-140, to the USCIS, the employer must obtain an approved Labor Certification Request from the DOL's Employment and Training Administration (ETA). The current system for submitting a Labor Certification is called PERM or Program Electronic Review Management. This is the first step for many employment-based green card cases and is required for almost all applicants under the employment-based immigrant preference categories EB-2 and EB-3.
By approving a Labor Certification, the DOL is informing USCIS that there are no qualified U.S. workers able, willing and available to accept the open job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
REQUIREMENTS FOR FILING A PERM LABOR CERTIFICATION
- Applications filed on or after March 28, 2005, must file using the PERM process;
- The employer must hire the foreign worker as a full-time employee;
- There must be a bona fide job opening available to US workers;
- Job requirements must adhere to what is customarily required for the occupation in the US and may not be tailored to the worker's qualifications. In addition, the employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
PERM FILING PROCEDURE
- Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application will describe in detail the job duties, educational requirements, training, experience and other special capabilities the employee must possess to do the work, as well as a statement of the prospective immigrant's qualifications.
- Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien and preparer (if applicable) when they are received by the National Processing Center (NPC). In order to be valid, applications filed electronically must be signed immediately by the employer, alien and preparer (if applicable) upon receipt of the labor certification issued by ETA.
- Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) which has jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the following SWA-provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date and the expiration date.
- Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application. The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations published in Appendix A to the preamble of the final PERM regulation. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of US applicants and provides the number of US applicants rejected in each category. The recruitment report does not have to identify the individual US workers who applied for the job opportunity.
- Audits/requests for information. Supporting documentation need not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
- Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
- Re-filing. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may re-file by withdrawing the original ETA Form 750 application and submitting, within 210 days of withdrawing, an ETA Form 9089 application for an identical job opportunity which complies with all requirements of the new PERM regulation.
- Online filing. The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:
- Save time by pre-populating your general information.
- View the status of your labor certification applications online.
- Update your profile information online.
- Track newly submitted labor certification applications.
- Email saved labor certification applications to others within the company.
- Add new users to your account.
- Withdraw labor certification applications no longer needed.
- Filing by mail. National Processing Centers have been established in Atlanta and Chicago. The address and contact information for each National Processing Center and the states and the territories within their jurisdictions are provided on the Department of Labor website.
Approvals. If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application.