PERM Labor Certification
PERM (Program Electronic Review Management) Certification is the process used to obtain labor certification, and for those foreign nationals who are seeking a green card through their employment, it is the first step of the process to obtaining permanent residence. EB-2 (Second Preference, excluding National Interest Waiver and EB-3 (Third Preference) are the employment based preference categories that require PERM labor certification.
A U.S. employer interested in filing for an immigration petition on behalf of foreign employees in EB-2 and EB-3 positions must first obtain an approved labor certification from Department of Labor (DOL). An application for labor certification is filed by the employer submitting ETA Form 9089 to the DOL. The DOL must then certifies to the USCIS both that there aren’t sufficient number of U.S. workers able, willing, qualified and available to accept the position being offered by the U.S. company to the foreign worker at the prevailing wage for the position in the area of intended employment, and that the employment of the foreign worker by the U.S. company will not adversely affect the wages and working condition of similarly employed U.S. workers.
The PERM certification process requires the petitioning U.S. employer to conduct a series of U.S. personnel recruitment activities to test the American labor market before the employer can file the labor certification application. If the company’s recruitment process does not yield a sufficient number of U.S. citizens and permanent residents who are able, qualified and willing to be applicants for the position, then the employer can submit a PERM labor certification application for the foreign worker.
Employers have the option to submit labor certification applications to the DOL for adjudication either electronically or by mail. Supporting documents are not to be submitted at the time of the initial filing. However, the employer is required to have already conducted all necessary recruitment activities and have all of the supporting documents ready prior to the filing. All documents such as website, recruiting advertisements in the newspaper, printed ads, etc should be saved by the petitioning employer for at least 5 years to ensure compliance in case of a potential audit or review.
Currently, an electronically filed PERM labor certification application is processed in approximately 90 days, unless the application is audited. If the DOL selects the PERM labor certification application to be audited, the petitioning employer needs to submit all of the requested documents to the DOL within 30 days. If an employer does not respond to the DOL audit request, then the case is deemed abandoned. The employer can be penalized by begin required to conduct DOL supervised recruitment for any future labor certifications.
Once the labor certification is approved by the Department of Labor, the employer needs to file an immigrant petition to USCIS before the related DOL labor certification expires. The DOL labor certification is valid for 180 days and will expire if not submitted to the USCIS within the 180 day period.
PERM labor certification is not required for a National Interest Waiver (NIW) petition under EB-2. Labor certification is also not required for any EB-1, EB-4 or EB-5 petitions.
Generally, PERM labor certification is an extremely complicated and time-sensitive process. If you are looking to file a PERM labor certification and would like to learn more about the process, please contact Somair S. Alam, Esq. at firstname.lastname@example.org or at (646) 598-9824 for further information.