PERM Labor Certification

PERM Labor Certification

The PERM or Program Electronic Review Management System Labor Certification was created by the Department of Labor on March 28, 2005. It is essentially the first step in the process of applying for employment-based lawful permanent residency (green card). The objective of PERM is to defend U.S. workers and the job market. This means that the process was created to ensure that foreign workers are not filling the positions that could otherwise be filled by qualified U.S. workers.

The PERM applicant must submit a comprehensive application to the Department of Labor in order to demonstrate how his/her exceptional skills cannot be duplicated by an available U.S. worker. Unlike the EB-1 First Preference Visa, the EB-2 and EB-3 both require the applicant to obtain a PERM Labor Certification before applying for the employment-based immigrant visa.

The PERM Labor Certification for EB-2 Visa may be waived with the National Interest Waiver (NIW) if the applicant provides evidence that the employment would further the national interest of the United States.

PERM Labor Certification Requirements:

In order to qualify to begin the PERM process, the following requirements must first be met:

  • You must have an existing permanent job offer by a U.S. employer
  • The offered wages are required to be equal or above the DOL prevailing wage. DOL will subject this to the specific position.
  • The local job market has been analyzed for qualified candidates. This is required to provide evidence that U.S. workers are unable to complete the requirements of the position, meaning that no qualified native workers are available for the position. Supplementary documentation relating to recruiting efforts must be made available if requested.
  • The U.S. employer is obligated to construct and maintain an audit file with additional proof of attempts at recruitment.

PERM Recruitment Steps:

PERM regulations mandate that recruitment steps for both professional and non-professional positions be completed within 6 months of filing the PERM application.

Professional vs. Non-Professional

Professional occupations usually require a bachelor’s degree or higher. You could also possess the foreign equivalent of a degree to qualify. Speak with your immigration attorney to determine if your degree qualifies for the professional occupation category.

Mandatory Steps:

  1. Placing a Job order with the State Workforce Agency for a period of 30 days;
  2. Placing a job ad in 2 consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment OR an ad can be placed in a relevant professional journal in lieu of 1 Sunday newspaper ad.

(NOTE – if the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer may then use the edition with the “widest circulation” in the area of intended employment.)

A combination of any 3 additional recruitment methods outlined below can meet the additional recruitment requirement for professional positions:

  1. Job fairs
  2. Employer’s website
  3. Job search website other than your employer’s (e.g. monster.com, indeed.com)
  4. On-campus recruiting
  5. Trade or professional organization
  6. Private employment firms
  7. Employee referral program with incentives
  8. Campus placement offices
  9. Local and ethnic newspapers
  10. Radio and television

Your employer should always remember to keep a diligent record of all payment receipts and online correspondence to provide sufficient evidence of the effort put into this recruiting process. This will help avoid a lengthy and potentially costly audit.

Non-Professional Jobs

In order to satisfy the recruitment process for non-professional positions (positions that do not require a degree an employer is required to only comply with the following 2 steps:

  1. Placing a Job order with the State Workforce Agency for a period of 30 days;
  2. Placing a job ad in 2 consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment

The steps must be conducted at least 30 days but no more than 180 days before the filing of the application. For both professional and non-professional positions, the employer must wait 30 days after the end of the recruitment period before filing the ETA 9089. This is to ensure that any qualified U.S. workers have a reasonable time period in which to respond to your ads or job order.

 PERM Labor Certification Documentation:

  • Local Labor Market Analysis (evidence that U.S. workers are incapable/ineligible of performing this employment).
    • Approved Documented Evidence:
    • Prevailing Wage Request – the DOL uses the location and requirements for the position to determine the prevailing wage.
    • Job Orders
    • Newspaper Ads
    • Prints of website job ads

PERM Labor Certification Process:

  • The U.S. employer conducts a series of permissible recruitment efforts to analyze the current U.S. labor market. All efforts must be documented and ready for DOL inspection.
  • U.S. employer submits Labor Certification application to Department of Labor. (Form ETA 9089). This can be done electronically or by mail.
  • The DOL must then verify that the applicant possesses a skill that is unobtainable in U.S. workers or that the employment required cannot be completed by a U.S. worker. The U.S. employer is obligated to provide evidence that the applicant’s employment will not affect U.S. workers in related fields. This may take 120-180 days unless it is selected to be audited by the Department of Labor.
  • If the petition by the U.S. employer is selected for auditing, the employer must respond with supplementary documentation within 30 days of the request.
  • Once the Labor Certification is approved, the U.S. employer must file an immigrant petition with the USCIS before the Labor Certification expires.
  • If the employer fails to complete the immigrant petition before the deadline, the case will be labeled as abandoned.
  • When the I-140 is approved the applicant must register for Permanent Residence by filing Form I-485 with USCIS.

Rejecting Applicants

Your employer needs to create a recruitment report that includes the reasons that led you to reject all U.S. applicants. These reasons must be lawful and non-discriminatory. While your employer does not need to identify each applicant, an audit may require this information.

PERM Audit

If the DOL or Certifying Officer are not satisfied with the information provided, then your employer may run the risk of receiving a targeted audit. This can be the result of inconsistencies in your documentation, suspicion of the availability of qualified U.S. workers, or an incomplete or dissatisfactory recruitment report.

The DOL also runs random audits that can neither be anticipated or avoided. This is done to help ensure that no one attempts to take advantage of the PERM system. While we always recommend seeking help from an immigration attorney to mitigate the possibility of a targeted audit, there is nothing that can be done for a random audit.

If your employer is selected for an audit, the processing time increases drastically from about six months to over one and a half years in some cases. It is also important to note that once an audit notice has been given, your employer must respond even if the PERM application has been withdrawn.

PERM Labor Certification Cost and Green Card Processing Fee

The Department of Labor has no filing fee for the PERM petition. However, the Labor Certification cost includes more than just a filing fee. There will be additional costs associated with the recruitment process such as placing ads and taking the time to interview potential U.S. candidates. Regardless, the entire PERM application process is the responsibility of your employer.

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

The costs associated with adjusting your status vary depending on your age. To get a better understanding of what the I-485 costs to file, take a look at the chart under “Special Instructions” on the USCIS website.

PERM Attorney Fees

  • We charge a flat PERM attorney fee of only $3000 for PERM Labor Certification filing.
  • The PERM attorney fee for preparing and filing the I-140 petition is $1500.
  • The lawyer fee for filing I-485, EAD and AP is $1000 for the primary applicant and $800 for each dependent family member.
  • The attorney fee for PERM certification ($3000) and Advertising Fees (approx. $1,500) can NOT be paid by the applicant and must be paid by the employer.

PERM Visa: What is it?

There is a common misconception about the PERM Labor Certification. Many people tend to call it a PERM visa. However, the PERM is not a visa and does not by itself grant you access to the U.S. Instead, it is merely the first step in obtaining an immigrant visa (green card). Once your PERM is approved, your employer can file a petition for a green card on your behalf.

After your I-140 petition is approved, you must wait until a visa number is available for your priority date. Depending on which employment-based green card you are applying for, this wait can be as little as not time at all or as long as 20 years.

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

How Our Immigration Lawyers Can Help:

  • Our immigration lawyers are capable of assisting you with the required documentation to meet the critical deadlines.
  • Our PERM Labor Certification attorneys are experienced in providing expert advice for complex situations including verifying U.S. employer and applicant qualifications.
  • Our immigration lawyers are knowledgeable in communication channels between USCIS and Department of Labor.
  • If the applicant receives an audit request from the Department of Labor, our immigration lawyers will prepare and submit an appropriate and timely response to the request with required documentation.
  • To get in touch with one of our attorneys, you can fill out this contact form to schedule a consultation today.