PERM Processing Guide for Labor Certification
When looking to recruit foreign workers to fill essential skills gaps in your workforce, there are various procedural hurdles that must be overcome, including seeking labor certification to allow you to permanently employ someone in your US-based business.
The following practical guide to US PERM processing for employers looks at what PERM labor certification is and when this is needed, together with how to make an application.
What is PERM labor certification?
Program Electronic Review Management (PERM) labor certification is a certificate issued by the Department of Labor (DOL) to allow an employer to hire a foreign national to permanently work in the United States. In most instances, before the employer can submit an immigration petition to US Citizenship and Immigration Services (USCIS), they must obtain a labor certification from the DOL’s Employment and Training Administration (ETA).
The DOL must certify to the USCIS that there are not sufficient US workers who are able, willing, qualified and available to accept the job opportunity in the intended area of employment and, because of this, the foreign worker’s employment will not adversely affect the wages and working conditions of similarly employed domestic workers.
In general, the DOL works to ensure that the admission of foreign nationals to work in the United States will not adversely affect the job opportunities, wages and working conditions of US workers. Once an application for permanent labor certification has been approved by the DOL, the employer can seek immigration authorization from USCIS.
Further information for employers on permanent labor certification can be found online on the USCIS website at Volume 6, Part E, Chapter 6 of the USCIS Policy Manual. The responsibility for filing of an application for PERM labor certification rests with the employer, not the foreign worker, although prospective employees may benefit from understanding how the permanent labor certification program applicable to their job opportunity is being utilized on their behalf. Additionally, the employer must qualify as a US employer with a valid Federal Employment Identification Number (FEIN) and have a location within the United States to which domestic US workers may be referred.
Who needs PERM labor certification?
The need for PERM labor certification arises in most cases where a US employer is petitioning for a foreign worker to obtain lawful permanent residence status (also known as a green card) in the United States on the basis of employment there. PERM certification will usually be needed for employment-based second and third preference petitions.
Employment-Based Immigration: Second Preference EB-2 visas
A foreign worker may be eligible for an employment-based, second preference green card if they are a member of the professions holding an advanced degree, or its equivalent, or someone who has exceptional ability:
Advanced Degree: the job opportunity must require an advanced degree, where the foreign worker possesses such a degree or its foreign equivalent. They must also meet any requirements specified on the labor certification as applicable as of the priority date.
Exceptional Ability: the foreign worker must be able to show exceptional ability in either the sciences, arts or business, where exceptional ability means a degree of expertise significantly above that normally encountered within these specific areas. The worker must also meet any requirements specified on the PERM labor certification.
Employment-Based Immigration: Third Preference EB-3 visas
A foreign worker may be eligible for an employment-based, third preference green card if they are a skilled worker, professional or unskilled worker:
Skilled Workers: the foreign worker must be able to demonstrate that they possess at least 2 years of job experience, education or training that meets the requirements specified on the labor certification for the job opportunity, and that they will be performing work for which qualified domestic workers are not available in the United States.
Professionals: the foreign worker must demonstrate that they possess a US baccalaureate or foreign equivalent degree, where education and experience may not be substituted for a baccalaureate degree, and that a baccalaureate degree is the normal requirement for entry into the relevant occupation. They must also be performing work for which qualified domestic workers are not available in the United States and meet any other requirements specified on the PERM labor certification.
Unskilled workers: the foreign worker must demonstrate the ability to perform unskilled labor that is not of a temporary or seasonal nature, requiring less than 2 years training or experience. They must be performing work for which domestic workers are not available in the US and meet any other requirements specified on the PERM labor certification.
What is the PERM labor certification process?
The process of obtaining a PERM labor certification involves the following steps:
- Step 1: Identify a permanent full-time job opportunity that may be filled by a foreign worker in accordance with the applicable sections of the Code of Federal Regulations (CFR). The employer must determine the minimum requirements and duties for the relevant job opportunity, where these opportunities are generally categorized by occupation type under professional and non-professional occupations, special handling for college and university teachers, and professional athletes.
- Step 2: Request and receive a valid Prevailing Wage Determination (PWD) from the Office of Foreign Labor Certification’s (OFLC’s) National Prevailing Wage Center (NPWC). The OFLC is a division of the ETA within the DOL, a United States executive department responsible for promoting the welfare of workers and job seekers. Prior to filing an application for PERM processing, the employer must have a determination for the job opportunity on which the immigration petition will be based issued from the NPWC.
- Step 3: Complete any necessary advertising and recruiting requirements, if applicable. The recruitment steps are determined by the type of occupations categories as listed under the CFR. Employers must also comply with CFR requirements for the notice of filing, where the employer must give notice of applying for PERM processing. This notice should be given to the union representative of any existing employees filling similar roles or, if no representative exists, to existing workers at their place of employment.
- Step 4: Submit a PERM application. Prior to submitting an online application, employers must register on Login.gov and create a Foreign Labor Application Gateway (FLAG) account. Alternatively, employers can mail their PERM applications, although online submission will streamline the process and allow the authorized preparer(s) to easily access the information and assist the OFLC to more efficiently process the application. If certified, a copy of the PERM labor certification can also be immediately obtained.
- What is the online process to apply for PERM processing?
When submitting an online PERM processing application, once logged in, the “New Application” tab will launch the application process. The person preparing the application (the authorized preparer) must select “Form ETA-9089″ under “PERM” to begin.
The preliminary questions include selecting the relevant occupation type, for example, a professional or non-professional occupation, or a college or university teacher where the candidate was selected using the competitive recruitment process. If none of the options apply, the preparer will need to indicate if the application is for an occupation for which blanket (Schedule A) certification is available. This could include those with exceptional ability (widespread acclaim and international recognition), or certain professional nurses and physical therapists, where the employer can submit the petition to USCIS with an uncertified ETA Form 9089 for direct consideration as a Schedule A occupation.
The preparer will also be asked if the employer is required, by notice from a Certifying Officer, to currently undergo supervised recruitment. For this question, “No” should be selected if the employer is not subject to supervised recruitment, otherwise “Yes” should be selected, uploading the Notice of Supervised Recruitment (NSR).
The preparer will then need to enter the PWD case number issued by the NPWC to identify the job opportunity and prevailing wage(s) covered by the application. This should link the PWD to the ETA-9089 application. If a valid PWD has not been obtained due to the employer being required to undergo supervised recruitment, the preparer should indicate if a completed Form 9141 is attached to the application. The form then comprises various sections that must be completed by the preparer, including employer and point-of-contact information, any attorney or agent information, job opportunity and wage information, worksite information, notice of posting of the application to any union representative or the employer’s existing workforce, and the employer’s labor condition statements.
The section requiring information about the foreign worker ties into Appendix A of Form ETA-9089, where information is collected about the worker’s education, training qualifications, skills and work experience. Appendix B is for any additional worksite information, where the work for the pending job opportunity is to be performed in geographic areas other than the one identified earlier in the form. Appendix C is for supplemental information, to be completed where the preparer needs to elaborate or further explain the business necessity of one or more requirements of the job opportunity under consideration for permanent labor certification. Finally, Appendix D refers to special recruitment for college and university teachers, where the occupation selected at the outset was for a college or university teacher where a competitive recruitment process was used.
Once all mandatory sections have been completed, the application can be reviewed and submitted, at which stage a confirmation will appear stating that the application has been received and referred for processing. A courtesy email notification will also be sent.
Which forms and supporting documents are needed?
To apply for PERM processing, the employer must use ETA Form 9089, Permanent Employment Certification. Apart from linking the PWD, supporting documentation will not usually be needed, unless the case is selected for audit, where documents can be uploaded online. However, once the employer has obtained a certified Application for Permanent Employment Certification, they must submit Form I-140, Petition for Alien Worker, with USCIS, together with the necessary documents in support of that petition.
The foreign worker will also need to file Form I-485 to adjust their status. This may be done concurrently where there is a visa number immediately available to that worker.
What are the PERM processing times?
The average number of days to process a PERM application can vary, depending on the material facts and individual circumstances of the case. In some instances, a case may also be sent for an audit, in addition to an analyst review, before being certified. Looking at the current data on the DOL website, the average PERM processing time during 2023 (as of the end of September 2023) is 326 days (analyst review) and 489 days (audit review).
How much does PERM processing cost?
There is no fee to file ETA Form 9089, although the cost to the employer to file the Form I-140 petition is $700. The cost to the worker to file Form I-485 is $1,225.
What is the priority date in the context of PERM processing?
The date any labor certification application is received by the DOL is referred to as the filing date, where this is used by USCIS and Department of State (DOS) as the priority date. A priority date is used in conjunction with the DOS Visa Bulletin to determine when a visa is available and the worker can apply for adjustment of status or an immigrant visa abroad.
After the labor certification application is certified by the DOL, it should be filed at the appropriate USCIS Service Center, together with a Form I-140, Immigrant Petition for Alien Worker. The PERM labour certification has a validity period of 180-days. This means that it must be submitted with the immigration petition within this period, otherwise it will expire.
How do you check the PERM application status?
Once an application for PERM processing has been submitted, the employer will be given an assigned case number, where employers can review and manage a case online. Where the case is still under review, it will either state “Analyst Review” or “Audit Review”.
NNU Immigration are specialists in US immigration applications and compliance. Our attorneys provide expert guidance and support to employers with all aspects of US talent mobility, including applications for PERM processing. Contact us to discuss your organisation’s US visa needs.
PERM processing FAQs
What is a PERM process?
Before a US employer can submit an immigration petition with US Citizenship and Immigration Services, they must obtain a certified PERM labor certification application from the Department of Labor. This is commonly referred to as the PERM process.
How long does PERM processing take?
The average PERM processing time during 2023 is approximately 10.5 months, although the number of days to process a PERM application can vary, depending on the material facts and individual circumstances of the case.
What is the timeline for PERM in EB2?
The timeline for obtaining PERM labor certification in EB2 applications is currently 326 days, on average, although this could be longer in certain cases. Once a case has been certified, the employer will still also need to file a petition.
Can we check PERM status online?
Once an application for PERM processing has been submitted online, employers can review a submitted case with an assigned case number using the portal dashboard. A case still under review will state either analyst or audit review.
What is the priority date for PERM?
The date any labor certification application is received by the Department of Labor is used by USCIS and the Department of State as the priority date, where this date will help determine when workers can apply for their green card.
This article does not constitute direct legal advice and is for informational purposes only.