A Permanent Labor Certification, issued by the Department of Labor (DOL), permits for an employer to hire a foreign worker for permanent employment in the United States. Prior to the employer being able to submit an immigration petition (Form I-140) to the USCIS, they are obligated to obtain an approved Labor Certification Request from the DOL's Employment and Training Administration (ETA). This process, recognized as PERM (Program Electronic Review Management), is a crucial step for most employment-based green card cases, particularly in the EB-2 and EB-3 preference categories.

The DOL approves a Labor Certification to inform the USCIS that there are no qualified U.S. workers available for the job at the prevailing wage in the intended area of employment. It also guarantees that hiring the foreign worker will not negatively impact the wages and working conditions of U.S. workers in similar positions.

To file a PERM Labor Certification, the following requirements must be met:

  1. Applications filed on or after March 28, 2005, must follow the PERM process.
  2. The employer must hire the foreign worker as a full-time employee.
  3. A job opening must be available to U.S. workers.
  4. The job requirements must conform to the customary standards for the occupation in the U.S., without tailoring them to the worker's qualifications. The employer must demonstrate that the job opportunity has been described without unduly restrictive requirements, unless justified by business necessity.
  5. The employer must pay at least the prevailing wage for the occupation in the intended area of employment.

The PERM filing procedure involves several steps:

  1. Application: The employer completes an Application for Permanent Employment Certification (ETA Form 9089) that outlines the job duties, educational requirements, experience, and other qualifications required for the position, along with the prospective immigrant's qualifications.
  2. Signature requirement: The application has to contain the original signatures of the employer, foreign worker, and preparer (if applicable) when submitted by mail. Electronic applications require immediate signatures upon receiving the labor certification issued by ETA.
  3. Prevailing wage: The employer requests a prevailing wage determination from the State Workforce Agency (SWA) with jurisdiction over the intended area of employment before filing ETA Form 9089. The application includes the provided SWA information, such as prevailing wage, SOC/O*NET code, occupation title, skill level, wage source, determination date, and expiration date.
  4. Pre-Filing Recruitment Steps: Except for specific cases, employers must attest to conducting recruitment before filing the application. The recruitment process follows standards based on the occupation's professional or nonprofessional requirements. A recruitment report must be prepared, categorizing lawful job-related reasons for rejecting U.S. applicants and specifying the number of rejections in each category.
  5. Audits/requests for information: Supporting documentation is not submitted with ETA Form 9089 but must be provided if the application is audited or requested by the Certifying Officer.
  6. Retention of records: The employer must retain all supporting documentation for five years from the filing date.
  7. Re-filing: If a job order hasn't been placed under the regulations prior to March 28, 2005, an employer can withdraw the original ETA Form 750 application and submit an ETA Form 9089 within 210 days to comply with the new PERM regulation.
  8. Online filing: Employers have the option to file electronically or by mail, with electronic filing being recommended for efficiency and accuracy. The Online Permanent System permits for employers to set up individual accounts, facilitating application management and communication.
  9. Filing by mail: National Processing Centers in Atlanta and Chicago handle mail submissions. The relevant addresses and contact information can be found on the DOL website.
  10. Approvals: If the National Processing Center approves the application, the ETA Form 9089 is stamped and returned to the employer.

Frequently Asked Questions about PERM Labor Certification:

  1. What are the requirements for PERM?

PERM requires the following:

- Prevailing Wage Determination from the State Workforce Agency (SWA)

- Job Order posted with the SWA for 30 days

- Internal notice of job opportunity

- Mandatory Sunday newspaper advertisements

- Additional advertisements for professional positions

  1. What is the Prevailing Wage, and how is it obtained?

The Prevailing Wage is the average wage paid to similarly employed workers in the requested occupation and geographic area. It is obtained by contacting the SWA or using legitimate sources such as the Online Wage Library. The most commonly used wage survey is the Occupational Employment Statistics (OES) Survey.

  1. What happens if the SWA determines a higher wage than the employer is willing to pay?

If the SWA determines a higher wage, the employer can challenge the decision. They may file supplemental information, a new Prevailing Wage Determination, or appeal under section 656.41. Certifying Officers analyze these requests, ensuring uniform decision-making.

  1. When is the employer required to pay the prevailing wage as determined by the SWA?

The employer is required to pay the prevailing wage once the beneficiary receives their green card. However, if the employer is sponsoring the beneficiary for an H-1B visa, they must pay the certified prevailing wage as stated in the Labor Condition Application.

  1. How long are Prevailing Wage Determinations valid?

Each state sets its own validity period, but the prevailing wage must be valid for at least 90 days and no longer than 1 year. Labor Certification Applications has to be filed while the prevailing wage determination is valid.

  1. What is a Job Order?

A Job Order is an advertisement for a job placed with the SWA. It is required to run for a minimum of 30 days, and the Labor Certification is not able to be filed until at least 60 days after the Job Order was originally posted. Each state has its own format and posting requirement for Job Orders.

  1. What are the internal job posting requirements?

The employer must post a Notice of Job Opportunity at the worksite for a minimum of 10 consecutive business days. It should include the DOL contact information, job title, description, requirements, and salary offered. If in-house media is used for recruitment, the notice must appear there as well. Collective Bargaining Agreements may have specific requirements.

  1. What are the mandatory recruitment requirements?

Under PERM, employers must place advertisements in the newspaper on two Sundays. The newspaper with the highest circulation in the area should be chosen. If there is no Sunday edition, the day with the highest circulation may be used.

  1. What information must be included in the newspaper advertisements?

The newspaper advertisements must include the job title, employer's name and location, and where to send resumes. Sufficient information about the job should be provided to describe it accurately.

  1. When are alternate forms of recruitment required?

Alternate forms of recruitment are required for professional occupations that typically require a bachelor's degree. If unsure about the job's classification, it's recommended to consult with an immigration office.

  1. What are the alternate forms of recruitment requirements?

If alternate recruitment is required, the employer must use three of the following:

  • Employer's website
  • Job Fair
  • On-campus recruitment
  • Campus Placement office
  • Employee referral program
  • Local and ethnic newspapers
  • Radio and TV ads
  • Trade and professional organizations
  • Job websites
  • Professional recruiters

The duration of each ad is not specified, but the employer must demonstrate a good faith effort to find qualified U.S. workers.

  1. What is the timing for filing a Labor Certification under PERM?

A Labor Certification must be filed within 180 days of the first form

 of recruitment. It cannot be filed fewer than 30 days from the completion of the last form of recruitment. One of the alternate forms of recruitment may occur during the 30-day wait period prior to filing.

  1. What happens once the advertisements are placed?

Once the advertisements are placed, the employer is obligated to contact each qualified applicant who submitted a resume. Applicants can only be disqualified for lawful reasons such as not meeting the required education or experience.

  1. What if the employer had layoffs?

If the employer had any layoffs in the beneficiary's occupation or a related occupation within six months before filing, they must document that they have contacted and considered all laid-off employees.

  1. What is a Recruitment Report?

After the recruitment process, the employer must prepare a Recruitment Report. It should include details about the job, recruitment steps taken, the number of applicants, reasons for not hiring them, and how the beneficiary meets the job requirements.

  1. What is Business Necessity?

Business Necessity is used to justify requirements that are not typical for the occupation or exceed the SVP (Standard Vocational Preparation) level. It demonstrates that the job duties and requirements are reasonable, essential, and related to the employer's business.

  1. How is the Labor Certification filed under PERM?

Employers can file electronically or by mail. Electronic filing is recommended for efficiency and accuracy. The PERM online system allows employers to create accounts, track cases, and share applications with attorneys. Mail filing lacks tracking capabilities, and the employer relies on the DOL to enter information correctly. Signatures of the employer, beneficiary, and attorney are required for mail filings.

  1. What happens after the application is filed?

If filed electronically, the DOL contacts the employer to confirm their intention to file a labor certification. Once confirmed, processing continues. Certifying Officers from the DOL adjudicate cases and determine whether to Certify, Deny, or Audit them. Employers receive written notifications of the determination.

  1. What is an Audit?

An Audit is a request for additional documentation or information, randomly or for cause, by the Certifying Officer. If selected for an audit, the employer has to display thorough documentation of the recruitment efforts. The response time is 30 days. Failure to respond leads to decisive and final action. Audits may trigger based on various factors.

  1. Can a labor certification be re-filed if denied?

Yes, a denied labor certification can be re-filed without a waiting period. The only restriction is that the recruitment must still be valid for the position.

  1. What if the Labor Certification was incorrectly denied?

Requests for review of denials or revocations can be filed with the Board of Alien Labor Certification Appeals (BALCA).

  1. Can a labor certification be withdrawn?

Yes, a labor certification can be withdrawn before an audit notice is issued.

  1. What happens once the Labor Certification is certified?

Once a Labor Certification is certified, the employer must file Form I-140, Immigrant Petition, with the USCIS. This petition demonstrates the employer's ability to pay the proffered wage and the beneficiary's qualifications as defined in the labor certification. The signed, original, certified labor certification is filed with the I-140.

  1. What is an Audit File, and how long must it be kept by the employer?

The Audit File is kept by the employer to document the recruitment process used in filing the labor certification. It must be retained for five years. The DOL may request records at any time.

  1. What documents should be kept in the Audit File?

The Audit File should include tear sheets of newspaper ads, confirmations of ad placements, job order posting details, signed Notice of Job Opportunity, Prevailing Wage Determination, Recruitment Report, received resumes, beneficiary's credentials, and letters of experience.

  1. Can an employer sponsor a beneficiary who is not currently employed by them?

Yes, it is possible for an employer to sponsor a beneficiary who is not currently working for them. The labor certification application is for a future offer of employment, meaning it is an offer of employment that will be provided to the beneficiary once they receive their green card. This rule applies to beneficiaries who are not currently in the United States as well. An employer can apply for someone who is living abroad.

  1. Does an approved labor certification grant immigration status?

No, an approved labor certification does not grant immigration status. It is simply a certification from the Department of Labor stating that there are no qualified US workers available to perform a specific job in a specific location. Similarly, the approval of an I-140 immigrant petition also does not confer immigration status. The petition classifies the beneficiary under the appropriate employment-based category for the purpose of obtaining a green card.

  1. Can a labor certification filed under traditional manners, or Reduction in Recruitment (RIR) methods be re-filed under PERM?

If a job order has not been placed for a pending labor certification application filed under traditional or RIR methods, it may be re-filed under PERM without losing the priority date under certain conditions. To re-file and maintain the priority date, the PERM application must adhere to all PERM requirements and must involve an identical job opportunity.

To re-file under PERM and preserve the priority date from an earlier case that has not been assigned a job order, the original labor certification application must be withdrawn. It's important to note that if an application is filed under PERM, stating the employer's desire to use the original filing date, it will be considered a withdrawal of the original application, even if the request to use the original filing date is denied.

If a Traditional or RIR labor certification is withdrawn before filing a PERM application, the preservation of the priority date requires the PERM application to be submitted within 210 days of the withdrawal of the original application. The employer should be prepared to provide a copy of the original application, including any amendments, to the Certifying Officer (CO) if requested.

A job opportunity is considered identical if the employer, foreign national, job title, job location, job requirements, and job description remain exactly the same as those in the original application. The original application includes all accepted amendments up until the withdrawal of the application.

  1. What is Schedule A?

Schedule A is a list of occupations determined by the Department of Labor where there is a shortage of qualified US workers who are able, willing, qualified, and available to fill those positions. Employment of aliens in these occupations is deemed not to adversely affect the wages and working conditions of similarly employed US workers. Examples of occupations included in Schedule A are physical therapists, nurses, and individuals with extraordinary ability in the arts and sciences.

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