“Labor Certification” is the most common employment-based option for obtaining a green card. To obtain labor certification, a U.S. employer must prove that there are no minimum qualified U.S. workers for the position. Once this application has been “certified” by the U.S. Department of Labor (DOL), the employer will be able to apply to the U.S. Citizenship and Immigration Services (CIS) for permanent residency (a “green card”) for the foreign employee.
What is PERM Labor Certification?
The PERM process, which stands for “Program Electronic Review Management,” is a series of steps that an employer must take to demonstrate that no U.S. citizen worker is available to fill the position. Also, wages offered by the employer must not be lower for foreign workers than what a U.S. citizen would demand. Overall, the primary purpose of PERM certification is to evaluate whether hiring a non-U.S. citizen employee would prevent equally capable U.S. workers from acquiring similar positions.
How Does PERM Work?
The following guide will go over the procedure for obtaining a PERM certification.
Step 1: Prevailing Wage Determination (PWD) Request
The employer makes a “prevailing wage request” to the U.S. Department of Labor (DOL) via its FLAG website (the former “icert” website was decommissioned in 2020). The DOL receives information regarding the offer from the prevailing wage request, such as employment requirements, job duties, and workplace location. The DOL uses this information to issue an employer a prevailing wage determination (PWD), which specifies the average rate for a particular employment position at a specific worksite. The PWD is a critical aspect of the PERM process because immigration law requires employers to pay foreign workers at least the prevailing wage for the worker’s position. Employers must provide the correct worksite location on the prevailing wage request to ensure that the DOL gives them the accurate PWD.
Step 2: Placing Ads and Recruiting
The next recruitment step is especially critical, as the entire point of the PERM process is to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job opportunity. The employer is required to perform “good faith” recruitment, which means that the recruitment must be genuinely aimed at attracting any available American workers. There are three obligatory advertisements for PERM.
• Job order: In the state where you plan to work, your employer must post an advertisement with the state workforce agency for a period of 30 days.
• Advertisement in the newspaper: The employer must place newspaper advertisements on two different Sundays. The newspaper must be the major newspaper of general circulation in the area of intended employment.
• Additional recruitment steps: The employer must also place three additional advertisements and display a notification of the job opportunity at the worksite location. If possible, employers should put all of the adverts simultaneously (or near to the same time). The timeline needs to be followed because all advertisements must be less than 180 days old when filing the PERM application. If one of the ads is more than 180 days old, it cannot be utilized for the PERM, and the employer must run a new ad before filing the PERM.
The first two steps, job order and two print advertisements are required for all professional occupation applications, except applications for college or university teachers chosen through a competitive selection and recruitment process.
Step 3: Filing ETA Form 9089
The employer will file the PERM application with the DOL using ETA Form 9089 (provided no qualified and willing U.S. workers applied for the job position) after the mandatory 30-day waiting period has passed. This waiting period begins the day after the last ad expires. The employer cannot file the ETA 9089 until 30 days after the expiration of the most recently placed ad.
Employer files this form electronically at the DOL website, with the prevailing wage request. The DOL receives information on the job opportunity (such as the worksite location, duties, requirements, and prevailing wage), the employer’s recruitment process (such as where and when the ads were placed), and information on the foreign worker (such as the worker’s place of birth, education credentials, and work experience). After filing the ETA Form 9089, he/she will wait several months for the DOL to adjudicate the PERM. The DOL can (1) approve the PERM, (2) deny the PERM, or (3) audit the PERM. If your PERM is audited, the DOL will ask your employer to provide additional evidence for the application. After your employer responds to the audit request, the DOL will review the new evidence and approve or deny the PERM.
After receiving the approved PERM, the employer can move on to the next big step of the process, filing an I-140 petition on your behalf with the U.S. Citizenship and Immigration Services.
The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2. It is not required for any EB-1, EB-4, or EB-5 petitions.
