PERM Labor Certification Guide for Employment-Based Green Cards

If you are interested in getting an employer sponsored green card, you will likely need to know about the PERM process.

When an employer wants to sponsor a foreign worker for many types of employment-based green cards, the employer often must first obtain an approved labor certification from the Department of Labor.

The PERM process, which stands for Program Electronic Review Management, is the way that an employer obtains an approved labor certification from the Department of Labor. This is the first step for many in obtaining an employment based green card.

The PERM labor certification process is completed by the employer. Through various steps, the PERM process ensures that there are no qualified American workers for the job that the foreign national is being sponsored for.

In this guide, I’ll explain what you need to know about the PERM labor certification process. If you have any questions, feel free to email us directly at contact@ashoorilaw.com.

Overview

1. What is the PERM labor certification?

2. Why should you complete the PERM labor certification?

3. What are the requirements for the PERM labor certification?

4. What is the process for getting a PERM labor certification?

5. Audits

6. What documents are needed for a PERM labor certification?

7. What forms are required for a PERM labor certification?

8. PERM labor certification fees

9. PERM labor certification processing time

10. Conclusion

1. What is the PERM labor certification? 

The PERM (Program Electronic Review Management) system is a way of obtaining a labor certification from the Department of Labor. Obtaining an approved labor certification from the Department of Labor is the first step in obtaining an employer sponsored green card. The PERM labor certification process is completed by the employer. Through various recruitment procedures, the PERM process ensures that there are no qualified American workers for the job that the foreign national is being sponsored for.

The PERM labor certification is required for some green card categories. It is required for most EB-2 and EB-3 cases, unless you qualify for an exception such as the EB-2 National Interest Waiver or certain Schedule A occupations. The PERM labor certification is approved by the Department of Labor. If it is required in your case, you generally cannot continue with the immigrant visa or green card application process until it is approved.

Please be aware that an approved PERM labor certification is not lawful status. It is only the first step in getting approved for a green card. Please note that PERM labor certification is not required to obtain every type of green card. It is generally required for most EB-3 cases and many EB-2 cases, but other employment-based and all family-based categories follow different rules.

2. Why should you complete the PERM labor certification? 

There are many reasons why an employer may want to complete the PERM labor certification process. Here are just a few:

You can hire a permanent foreign worker. 

This is the most significant benefit associated with the PERM labor certification. Once you have an approved PERM labor certification, you can file a Form I-140 immigration petition for permanent residence on behalf of a foreign worker. This is known as sponsoring the worker. If you wish to hire a foreign worker and sponsor them for a green card, using the PERM labor certification process is a great option.

For many employers and foreign workers, the employment-based green card route using PERM can be an attractive option compared to some other permanent residency paths, depending on the category and country of chargeability.

If you are hoping to sponsor a foreign national, the employment-based green card through the PERM labor certification is often an excellent option. It is relatively fast and easy, compared to other ways of getting a green card.

For example, the EB-1 green card does not require a PERM labor certification. However, the requirements are stricter than the EB-2 and EB-3 green cards.

Another way of getting a green card is through family-based petitions. These are different from employment-based green cards because your family sponsors you rather than your employer. Family-based green cards do not require PERM labor certification. In some preference categories, family-based wait times can be quite long, while in others (such as certain immediate-relative cases) they may be shorter than EB-2 or EB-3. Whether the PERM route is a better option depends on the person’s specific family and employment situation.

3. What are the requirements for the PERM labor certification? 

In order for your PERM labor certification to be approved, you must meet several requirements. They are discussed below. My team and I would be happy to help you determine if you meet these conditions.

There must be a valid job offer. 

The employer must have made a valid job offer to the foreign beneficiary. The employer should have an IRS tax identification number, a bona fide place of business, and reliable contact information. The employer must have an employer-employee relationship with the foreign beneficiary. This means they must have the ability to control the work of the beneficiary through hiring, paying, supervising, and firing them. A valid job offer can be shown through a contract between the employer and the beneficiary.

The beneficiary must be fairly compensated for their work. 

The employer must be paying the beneficiary fairly for their work. This means that they must pay equal to or more than the prevailing wage. The prevailing wage is set by the Department of Labor. The employer must request the prevailing wage from the Department of Labor. The prevailing wage, as well as the salary for the position, must be shared on the PERM labor certification application.

Attempts to recruit American workers must have been made. 

Before your labor certification can be approved, you must demonstrate that there are no qualified American workers for the job. To prove this, you must go through a recruitment process. This includes posting a job order with the State Workforce Agency. It also involves posting advertisements in newspapers, stores, and other locations. More information about the requirements for the recruitment process will be provided later in the guide.

4. What is the process for getting a PERM labor certification? 

The PERM labor certification process is a multistep one. The following is a general list of steps. A more detailed explanation follows below. My team and I would be happy to expand any of these steps for you.

• Recruitment Process
• Submit Form ETA-9089
• Submit Form I-140

Recruitment Process 

You must first extend a job offer to a foreign national and determine a PERM labor certification is appropriate. Then, you must ensure there are no qualified American workers for the job through the recruitment portion of the PERM process. In this process, the employer must make it locally and publicly known that a job is available. If any qualified American workers apply for the job, they must be given priority ahead of the foreign beneficiary. If you do not hire any of the American applicants, you must have a valid reason.

The exact recruitment process will depend on if the job is a professional or nonprofessional job. Professional jobs are jobs that require at least a bachelor’s degree or its equivalent. Nonprofessional jobs are jobs that do not require a degree. An immigration lawyer can confirm if the job is professional or nonprofessional if you are unsure.

Professional jobs have more strict requirements for the recruitment process. Firstly, they must place a job order with the State Workforce Agency. This job order must be available for at least 30 days. Secondly, they must place a job order in a Sunday newspaper for 2 consecutive Sundays. One of these Sunday newspaper ads can be replaced by an advertisement in a relevant professional journal. Additionally, advertisements must be placed in at least three of the following:

• At a job fair
• On the employer’s website
• On a job search website
• At a campus recruiting event
• Through a trade or professional organization
• Through a private employment firm
• Through an employee referral program
• In college placement offices
• In other local or ethnic newspapers
• On radio and/or television

Nonprofessional jobs have slightly less strict requirements. They must place a job order with the State Workforce Agency for at least 30 days. Additionally, the employer must put an ad in 2 consecutive Sunday newspapers. However, they are not required to make any other recruitment efforts.

All required recruitment efforts must be completed at least 30 days before you file the PERM application, to give U.S. workers a reasonable chance to apply. The recruitment used for the PERM case generally must not be more than 180 days old at the time of filing. This helps ensure that the job market has been tested recently.

Additionally, please be aware that you must keep all of your documents showing proof of the recruitment process for up to 3 years in case of an audit.

Submit Form ETA-9089 

You must complete the recruitment process without finding a qualified American worker. You must also ensure that you meet all other requirements for the PERM labor certification. If you do, you can complete and submit Form ETA-9089. Form ETA-9089 is the Application for Permanent Labor Certification. This document is submitted to the Department of Labor either electronically or by mail.

Submit Form I-140 

Form ETA-9089 is your PERM labor certification application. If the Department of Labor approves it, the petitioning employer may file an I-140 green card petition. If the Department of Labor does not approve it, you may not continue with the green card application process.

Form I-140 is the Immigrant Petition for Alien Workers. This document is submitted to the United States Citizenship and Immigration Services (USCIS). The Form I-140 must be submitted before the PERM labor certification expires. More information about Form I-140 and the rest of the green card application process can be found by looking at the EB2 visa and EB3 visa service pages on our website.

5. Audits 

Audits can be targeted or random. Targeted audits occur when the Department of Labor has concerns about your application. These can be triggered by inconsistencies in the documentation or lack of sufficient evidence that the PERM requirements are met. My team and I will do our best to prepare complete and well-documented applications to reduce the likelihood of a targeted audit.

For random audits, the Department of Labor will audit some applicants to ensure that the PERM labor certification process is effective. There is nothing to be done to prevent random audits. For this reason, it is extremely important that you keep all supporting PERM documents on file.

If you are selected for an audit, you will have 30 days to respond with the requested information.

6. What documents are needed for a PERM labor certification?

In order to prove that you meet the conditions for a PERM labor certification, several documents may be provided. The following is a general list of documents that may be useful. Please be aware that it is not a comprehensive list. Applicants may not need to include all of these. My team and I would be happy to assist you in determining which documents are required for your individual situation.

Choosing appropriate documents is very important. If you fail to provide enough evidence of eligibility, your PERM application may be denied or may be selected for an audit. You should also take care to keep all documents for up to 3 years.

• Contract between the beneficiary and the petitioner
• Prevailing wage request
• Newspapers with job advertisements
• Job order submitted to the State Workforce Agency (SWA)

7. What forms are required for a PERM labor certification? 

Additionally, several forms are required throughout the PERM labor certification application process. The following will provide more information about some of them. My team and I would be happy to provide more information about any of these, or any other, form. My team and I would also be happy to help you complete any of these forms. Additionally, as with all other paperwork, you should keep copies of your forms for up to 3 years in case of an audit.

Form ETA-9089 

Form ETA-9089 is the Application for Permanent Employment Certification. This form is your PERM labor certification application. The employer will complete this form and submit it to the Department of Labor. The Department of Labor will use the information provided to determine if the PERM labor certification should be approved. The Form ETA-9089 asks questions about the employer, the attorney, the prevailing wage, the job, the recruitment process, and the beneficiary. My team and I would be happy to answer any questions you have about Form ETA-9089 or help you complete it if necessary. More information about Form ETA-9089 (Application for Permanent Employment Certification) is available on the U.S. Department of Labor website.

8. PERM labor certification fees

There is no fee associated with filing the PERM labor certification. However, there are fees associated with later aspects of the EB2/EB3 green card application process (such as filing the Form I-140 immigration petition).

There may also be fees for activities associated with the PERM labor certification, such as attorney’s fees or costs for placing job advertisements, photocopying, translating, or similar tasks. Under Department of Labor rules, the employer is required to pay all costs related to the PERM labor certification process and may not require the foreign worker to pay or reimburse these expenses.

9. PERM labor certification processing time 

The total time it takes for your PERM labor certification application to be approved will depend on a variety of factors. Some of these factors include the time of year when you apply, your individual case, and if you are subject to an audit. PERM applications that are not selected for audit typically take several months to be adjudicated, but actual processing times vary and can change over time. If your case is audited, the process can take significantly longer.

A PERM certification does not mean you have been approved for a green card. After the PERM labor certification is approved, you must obtain an approved Form I-140 and then wait for your priority date to become current under the visa bulletin. This stage can take many years for some foreign nationals in backlogged categories.

10. Conclusion 

The PERM (Program Electronic Review Management) labor certification is the first step for many in obtaining an employer sponsored green card. The PERM labor certification is completed by the employer. It ensures that there are no qualified American workers for the job. It is required for most people applying under the EB-2 and EB-3 categories, except for certain exceptions such as the EB-2 National Interest Waiver and some Schedule A occupations.

You should now have a much stronger understanding of the PERM labor certification, including the purpose, the requirements, and the application process.

If you have any questions about anything discussed in this guide or about the PERM labor certification in general, feel free to schedule a free consultation or email me at michael@ashoorilaw.com