What is PERM or Labor Certification?
Program Electronic Review Management (PERM) is the system used for obtaining Labor Certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (Green Card). This is also known as PERM Labor Certification.
“A Department of Labor(DOL) certification required for U.S. employers seeking to employ individuals whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States”.
- Labor certification is issued by the secretary of labor and contains attestations by U.S. employers of the numbers of U.S. workers available to undertake the employment sought by an applicant
- The effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed
The DOL Labor Certification Verifies the Following:
- There are insufficiently available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
- Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers
- Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work
Which Employment-Based Categories Needs PERM Labor Certification?
The employment-based preference categories that require PERM Labor Certification are EB-2 (other than a National Interest Waiver) and EB-3. The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2 and is not required for any EB-1, EB-4, or EB-5 petitions.
What are Steps for Filing of Labor Certification?
- The employer must first obtain an approved Labor Certification from the Department of Labor (DOL) before filing the immigration petition
- An application for labor certification needs to be submitted to the DOL by using ETA FORM 9089
- PERM process also requires the petitioning employer to conduct a series of recruitment activities to test the labor market
- The employer needs to ascertain the insufficiency of that qualified US worker for that position, before applying a series of recruitment processes
How Elaborate is the Recruitment Process?
For a professional position, there are four mandatory requirements. The company’s recruitment efforts must include:
- Placing two Sunday advertisements in a major local newspaper
- Posting notice of the job opportunity on the company premises for 10 consecutive business days
- Placing a job order with the State Workforce Commission for 30 days
- Obtaining a prevailing wage determination from the National Prevailing Wage Center
The Sponsoring Company Must also Partake in at Least Three of The Following:
- Participating in a job fair
- Posting the position on the employer’s website
- Use of a job search website other than the employer’s internal job board
- On-campus recruiting
- Recruitment through trade or professional organizations
- Use of private employment firms
- Use of an employee referral program with incentives
- Posting notice of the job opening at a campus placement office if the job requires a degree but no experience
- Advertisement in local and ethnic newspapers
- Radio and television
What are the Steps for Filing the Labor Certification?
- Under PERM regulations, employers have the option of submitting the labor certification application, electronically
- They can also submit by mail, directly to the DOL for adjudication
- No supporting documents are submitted at the time of filing
- However, the petitioning employer must conduct all required recruitment activities and have all supporting documents ready before filing
- Recruitment documents (such as website printouts, newspaper tear sheets, job orders, etc.) should be saved by a petitioner for 5 years to ensure compliance with a potential audit or review
How Long is the PERM Approval Process?
- According to the DOL, an electronically filed PERM Labor Certification application was originally expected to be adjudicated in around 45-60 days unless the case was audited
- The current processing time for unaudited PERM applications is more than 90 days
- It might even take six-ten months from the time of application to approval
- It takes longer if it is audited, or even paper application is filed
- If the case is selected by the DOL for auditing, the petitioning employer should submit all requested documents to the DOL within 30 days
- If the employer does not respond to the audit request, the case is deemed abandoned and the employer may be required to conduct “supervised recruitment” for any future Labor Certification
- If your employer has never filed LCA before, the DOL’s LCA filing system may not recognize their Federal Employer Identification Number (FEIN)
- So, they need to first verify their FEIN with Dept of Labor ( DOL) and it can take up to 5 working days
How Long will the Labor Certification Remain Valid?
- After the Labor Certification is approved by the DOL, an Immigrant Petition related to the Labor Certification should be filed with the U.S.C.I.S. before the expiration of the labor certification
- The certification has a validity period of 180-days and expires if not submitted to USCIS within this period
LCA application does not bind an employee to an employer like the H1B petition, so it is important to ensure that there is relative job stability, and there is a very low risk of employee attrition during the whole process.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. It is also dependent on a lot of variables, based on your unique situation.
To get a better idea of what your PERM processing time will be, you can fill out this contact form and schedule your consultation with one of our attorneys, or