Most professional workers will transition to permanent residency or a “green card” through the PERM labor certification (PERM) process. The PERM process is an attestation and audit process requiring employers to test the labor market by conducting good faith recruitment efforts prior to filing the labor certification application. An employer must demonstrate that:
- There are no able, willing, qualified and available U.S. workers to perform the job; and
- The employment of the alien will have no adverse effects on the wages and working conditions of similarly-employed U.S. workers.
All legal fees and any associated costs related to a PERM labor certification must be paid by the sponsoring employer. However, a foreign national can cover the costs of the I-140 and I-485 applications.
PERM Labor Certifications may be filed under the EB-2 second-preference or EB-3 third-preference categories:
- EB-2 is for professionals holding an advanced degree (at least a Master’s degree or a Bachelor’s degree plus five years of progressively senior work experience).
- EB-3 divided into three categories:
- Professionals with Bachelor’s degrees;
- Individuals performing a job that requires at least two years of education, experience or training; and
- Other workers, including individuals performing jobs which require less than two years of education, training or experience.
Determining whether the PERM application is filed under EB-2 or EB-3 depends on the minimum job requirements for the position that the foreign national is being sponsored for. This means that if the minimum requirements for the position require less than a higher degree or less than a bachelor’s and five years of experience (even if the foreign national has a higher degree or a bachelor’s and five years of experience), the application will fall under the EB-3 category.
Before a U.S. employer can file a PERM application with DOL, it must first test the U.S. job market to determine if there are no minimally qualified U.S. applicants willing to accept the position by conducting a good faith recruitment effort. There are several PERM labor certification requirements that a sponsoring employer must comply with when conducting recruitment and before actually filing the PERM application. Listed below is an outline of these regulatory requirements.
- When advertising for the job opportunity, the employer must follow these two (2) mandatory recruitment steps:
- Two (2) Sunday advertisements (which may be consecutive) in the newspaper of general circulation in the area of intended employment; and,
- A job order with the appropriate State Workforce Agency (SWA) for 30 days.
- For professional occupations, employers must take three (3) additional recruitment steps from the following alternatives:
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- 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 advertising
- If the job requires experience and an advanced degree, and a professional journal would normally be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday ads, place an advertisement in the professional journal.
- The employer must maintain copies of all resumes received from their recruitment effort. It must contact all applicants that appear to meet the minimum job qualifications and should make detailed notes about attempts to contact applicants and results.
- All documents pertaining to the recruitment process, including resumes and interview notes, must be kept for five years after the filing of the labor certification.
Notice of Filing
In addition to conducting a good faith recruitment, employers must place a notice of filing (“posting notice”) at the intended work-site for ten (10) consecutive business days. The notice must also be published in any and all in-house media in accordance with the normal procedures used for the recruitment of other similar positions. If the position is covered by a bargaining representative, the notice must be provided to the certified collective bargaining unit representative in the location of intended employment.
Prevailing Wage Determination
Prior to filing the PERM application, the sponsoring employer must submit a prevailing wage request (PWR) request to DOL’s National Prevailing Wage Center (NPWC). The proffered wage to the foreign worker must be at least equal to, or above, the prevailing wage rate as determined by NPWC. Once a wage determination is issued, it will be valid for a period of no less than 90 days to no more than one (1) year.
Timing is critical when it comes to filing the ETA form 9089 Application for Permanent Employment Certification. Before submitting the application to DOL, the employer must have:
- Conducted the mandatory recruitment steps at least 30 days, but no more than 180 days; and,
- Posted or provided to the bargaining representative the notice of filing for at least 30 days, but no more than 180 days.
The date the labor certification application is received by DOL is known as the filing date, which is used by the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) as the priority date for the following I-140 immigrant visa petition. If DOL is satisfied that, based on the employer’s good faith recruitment efforts, there are no qualified American workers, able and willing to do the job and the employment of the foreign worker alien will not adversely affect the wages and working conditions of United States workers similarly employed, it will certify the employer’s PERM labor certification application.
Immigrant Visa Petition
Once the PERM labor certification application is approved or certified, the next step is to file an I-140 immigrant visa petition with the USCIS. The approved ETA Form 9089 Application for Permanent Employment Certification is valid for 180 days. This means that the college or university must file the I-140 petition within 180 days of certification.
When filing an I-140 immigrant visa petition, the sponsoring employer must submit the certified ETA Form 9089 Application for Permanent Employment Certification, and must provide evidence of financial viability — i.e. it can pay the proffered wage or prevailing wage rate, whichever is higher. This can be documented by evidence of the employer’s current corporate tax return or audited financial statements. In a case where the sponsoring employer employs 100 or more workers, a statement from a financial officer of the company or organization which establishes the employers financial ability to pay is also acceptable. The foreign worker, for whom the I-140 immigrant visa petition is being filed, must provide qualifying evidence (eg. academic credentials, employment verification, etc.) that s/he meets all the minimum job requirements (as stated on the ETA Form 9089) at the time of hire by the sponsoring employer.
An I-140 immigrant visa petition based on an approved PERM labor certification application is eligible for the Premium Processing Service program. For a $1,225 processing fee, USCIS guarantees that it will issue either an approval, or where appropriate, a request for further evidence within 15 calendar days of receipt. Furthermore, if immigrant visas are available for the preference category and the priority date is current, the foreign worker and his/her eligible family dependents (spouse and/or children below 21 years old), who are in the United States, may concurrently file an I-485 adjustment of status application with the I-140 immigrant visa petition.