PERM LABOR CERTIFICATION
PERM LABOR CERTIFICATION
A permanent labor certification issued by the Department of Labor (DOL) authorizes an employer to hire a foreign worker for a permanent job opportunity in the United States. Typically, before the employer can file an immigration petition with the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), which oversees immigration and labor certification matters, the employer must first obtain a certified labor certification from the DOL’s Employment and Training Administration (ETA).
The DOL must certify that there are not enough qualified, willing, and available United States workers to fill the permanent job opportunity within the area of intended employment. Additionally, the DOL ensures that employing the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. This labor certification process safeguards the domestic labor market by confirming the lack of sufficient U.S. workers for the position.
In March 2005, the Department of Labor (DOL) introduced a new system for filing labor certification applications called Program Electronic Review Management (PERM).
The PERM labor certification serves as a crucial step in the employment-based immigration system, enabling employers to hire foreign workers when the U.S. labor market cannot fulfill their staffing needs.
Introduction to PERM labor certification
The PERM process is a foundational element for U.S. employers who wish to sponsor a foreign worker for permanent employment in the United States. Administered by the DOL, permanent labor certification is designed to ensure that the hiring of a foreign worker will not negatively impact the job opportunities, wages, or working conditions of U.S. workers. The PERM labor certification process requires employers to follow a series of steps, including prevailing wage determination, a thorough labor market test, and the submission of a PERM application. By adhering to these requirements, the PERM process helps maintain the integrity of the U.S. labor market while providing a pathway for foreign nationals to obtain permanent employment certification and, ultimately, lawful permanent residence.
Labor Market
The labor market is at the heart of the PERM labor certification process. Before an employer can move forward with hiring a foreign worker for a permanent position, they must conduct a comprehensive labor market test. This test is intended to confirm that there are no able, willing, qualified, and available U.S. workers for the job opportunity in the area of intended employment. Employers are required to actively recruit U.S. workers and meticulously document every step of the process, including copies of job advertisements, resumes received, and notes from candidate reviews. The labor market test is a critical safeguard, ensuring that the employment of a foreign worker does not displace similarly qualified U.S. workers and that the labor certification process upholds the standards set by the Department of Labor.
Process Overview
The entire PERM labor certification process involves several steps, including preparation of recruitment, filing the application, DOL review, and final adjudication.
Under PERM, employers can submit an application for permanent employment certification (Form ETA 9089) directly to the DOL online or by mail. The DOL’s adjudication timeline varies, but it typically ranges from three to ten months. Processing times can be affected by factors such as DOL backlogs, audits, and the complexity of the case. The filing date of Form ETA 9089 establishes the priority date for the applicant, which determines their place in line for an immigrant visa.
Form ETA 9089 is an attestation-based filing. The employer must:
- Answer a series of “yes” or “no” questions;
- Describe the offered position, job duties, and minimum requirements; and
- Confirm compliance with all regulatory recruitment and wage obligations.
The application filed date is critical for tracking deadlines and eligibility for subsequent immigration steps. Although supporting documents are not submitted at the time of filing, the employer must maintain all required documentation and produce it if the DOL conducts an audit. At the conclusion of the process, the DOL will issue a final determination, which may be an approval or denial of the labor certification.
Prevailing Wage Requirement
Before filing a PERM application, the employer must obtain a Prevailing Wage Determination (PWD) from the DOL. The prevailing wage rate is set to ensure the offered wage is comparable to those paid to similarly employed workers in the area of intended employment. The employer must agree to pay at least 100% of the prevailing wage once the foreign national becomes a lawful permanent resident and begins working in the offered position.
The DOL currently uses a four-level wage system. Guaranteed bonuses or commissions may be included in meeting the prevailing wage requirement, but non-guaranteed compensation cannot be counted.
Recruitment Requirements Under PERM
PERM requires “real world” recruitment conducted within the six-month period immediately preceding the filing of the application. Pre filing recruitment is a mandatory phase where employers must undertake specific recruitment activities before submitting the PERM application. The application may not be filed until at least 30 days have passed since the last recruitment step.
All employers must complete the following recruitment steps:
- Post a notice of the job opportunity at the job location (worksite) for at least 10 business days;
- Place a job order with the State Workforce Agency (SWA) to advertise the job opening to U.S. workers; and
- Run two Sunday newspaper advertisements in a newspaper of general circulation in the area of intended employment.
If the position qualifies as a professional occupation, the employer must complete three additional recruitment steps from a list that includes. The occupation involved determines whether these professional occupation recruitment standards apply:
- Job fairs
- Employer website postings
- Third-party job search websites (e.g., Indeed, Monster)
- On-campus recruiting (if no experience required)
- Trade or professional journals
- Headhunter services
- Employee referral programs (with incentives)
- Local ethnic newspapers
- Radio or television advertisements
Following recruitment, the employer must prepare and retain a detailed recruitment report describing the steps taken, the number of applicants, and lawful, job-related reasons for rejecting U.S. applicants. The employer must demonstrate there are not sufficient United States workers available for the job opening. Jobs require specific qualifications and experience, which must be reflected in the recruitment process. The employer must interview all qualified U.S. workers and hire any who are able, willing, qualified, and available.
Audits, Compliance, and Consequences
The DOL may audit PERM applications based on established selection criteria or randomly for quality control purposes. If audited, the employer must respond within 30 days.
Failure to respond timely or failure to maintain proper documentation can result in:
- Denial of the application;
- Supervised recruitment; or
- A two-year bar from using the PERM process.
Because of these consequences, strict compliance before filing is essential.
Business Necessity and Special Requirements
If an employer includes special job requirements that exceed the normal standards for the occupation, the employer must demonstrate “business necessity.” This means showing that the requirement bears a reasonable relationship to the job. The job description must accurately reflect the employer’s actual minimum requirements.
Examples include:
- Foreign language requirements where communication with a substantial portion of customers or employees necessitates it;
- Unique combinations of job duties common within the employer’s operations or industry;
- Positions that require an advanced degree or an equivalent foreign degree, or where individuals with exceptional ability are needed for the role.
Employers should retain documentation supporting these justifications, such as demographic data or business plans.
DOL Determination and Appeals
The DOL will issue a written approval or denial. This decision is based on the permanent labor certification application submitted by the employer. If denied, the employer may:
- File a Motion for Reconsideration with the Certifying Officer; or
- Appeal directly to the Board of Alien Labor Certification Appeals (BALCA).
During the appeals process, an attorney represents the employer or employee by providing legal guidance and ensuring compliance, but does not determine job requirements or review resumes. The employer’s organization is responsible for ensuring compliance with all regulatory requirements and for designating appropriate representatives, such as an agent or attorney, for the application process.
New evidence generally cannot be submitted unless it existed at the time of filing and was required to be maintained.
Even after approval, a labor certification may be revoked for fraud, misrepresentation, or material error.
Compliance with State and Local Equal Pay Transparency Laws in Job Postings
The PERM process now presents an additional compliance challenge: the growing number of state and local Equal Pay Transparency (EPT) laws requiring employers to disclose the minimum and maximum wage range in job postings.
Accordingly, careful analysis is required to determine:
- Whether an applicable EPT law covers the employer;
- Whether the EPT law applies to the specific PERM position, including through potential “long-arm” jurisdiction if the role could be performed within that state or locality—even if the employer is headquartered elsewhere; and
- How to properly reconcile state or local wage transparency requirements with federal PERM regulations governing prevailing wage determinations and salary notice obligations.
Retention of Records
The employer is required to retain copies of the permanent employment certification applications and all supporting documentation for a period of five years from the date the ETA Form 9089 is filed. For instance, although the NPWC prevailing wage determination documents are not submitted with the application itself, the employer must keep these records for five years following the application filing date.
Filing On-Line or By Mail
The employer has the option of filing ETA Form 9089 electronically (using web-based forms and instructions) or by mail. However, DOL strongly recommends that employers file electronically.
PERM for Foreign Worker in H-1B Status
Many foreign workers who seek lawful permanent resident status through the PERM process are currently in the United States in H-1B nonimmigrant status. Therefore, determining the duration of their H-1B status and their ability to extend it is crucial in determining when to file a PERM application. This maximizes the chances of maintaining their lawful status and work authorization during the PERM process. The priority date is established by the filing date of the PERM application, which determines eligibility for permanent residency under specific preference categories such as EB-2 and EB-3.
A foreign worker can stay in the United States in H-1B status for a maximum of six years. After this period, they must leave the country for at least a year before reentering in H-1B classification.
However, if a PERM application has been initiated, the foreign worker can extend their H-1B status beyond six years. Specifically, they can obtain a one-year extension if the PERM application or the I-140 immigrant petition has been pending for more than 365 days. If the PERM application is approved, the extension will be granted only if the I-140 immigrant petition was submitted within 180 days of approval before the certified PERM application expires. Premium processing is available for I-140 petitions, allowing for expedited adjudication by USCIS for an additional fee.
In another scenario, if the PERM application and I-140 immigrant petition are approved, but the foreign worker is unable to pursue the adjustment process due to the unavailability of an immigrant visa, they can obtain a three-year extension of H-1B status beyond the six years.
PERM for Foreign Worker in L-1 Status
The PERM process is generally not pursued for foreign workers in L-1A status because they can typically seek permanent residence through an EB-1 multinational manager or executive I-140 immigrant petition, which bypasses the PERM labor certification process. However, if the foreign worker is in L-1B status or, despite holding L-1A status, did not occupy a qualifying managerial or executive role before transferring to the United States, then the PERM labor certification process must be followed. In such cases, it is important to assess how long the foreign worker has been in the U.S. under L-1B or, if applicable, L-1A status, and how much longer they are authorized to maintain that status. The permanent labor certification process and foreign labor certification are critical for maintaining status and eligibility for permanent residency.
A foreign worker in L-1B status, who was admitted based on their specialized knowledge, is subject to a five-year maximum period of admission. A foreign worker who was employed in a nonmanagerial capacity prior to their transfer, but is admitted in L-1A status in order to assume a qualifying managerial or executive position, is permitted to remain in L-1A status for up to seven years.
Much like the foreign workers in H-1B status, at the end of the maximum period of admission, the foreign worker must change status or depart the country, although they may be eligible to return to the United States in H-1B or L-1 status after one year abroad. However, unlike the foreign worker in H-1B status, those in L status do not have the benefit extending their stay in the United States beyond the maximum period allowed based on their pursuit of employment-based lawful permanent residence.
Therefore, when a PERM application is necessary for a foreign worker in L-1 status facing substantial immigrant visa backlogs, it is crucial to provide thorough guidance. Both the foreign worker and employer should be encouraged to start the PERM labor certification process promptly to ensure the worker can maintain valid U.S. status throughout the journey toward obtaining lawful permanent residency. Processing times for each stage of the foreign labor certification process, including the prevailing wage determination, recruitment, and DOL review, can significantly impact the ability of foreign workers to maintain lawful status.
Employment Based Green Card
Securing an employment-based green card is the final objective for many foreign workers and their sponsoring employers after successfully navigating the PERM labor certification process. Once the PERM application is certified, the employer must file an I-140 Immigrant Worker Petition with USCIS within six months. At this stage, the employer must demonstrate the ability to pay the prevailing wage and confirm that the foreign national meets all the job requirements specified in the PERM application. Following I-140 approval, the foreign worker can apply for permanent resident status through an I-485 Application to Adjust Status (if in the U.S.) or a DS-260 Immigrant Visa Application (if abroad). This multi-step process ultimately leads to permanent residence, allowing the foreign national to live and work in the United States on a long-term basis. The employer must remain compliant throughout, ensuring all aspects of the labor certification and green card process are properly documented and timely filed.
Frequently Asked Questions
What does the acronym PERM stand for?
PERM stands for Program Electronic Review Management, the system used by the Department of Labor to process labor certification applications.
What is a “familial relationship” in the context of PERM labor certification?
A familial relationship encompasses any connection established through blood, marriage, or adoption, regardless of the degree of relationship. For instance, cousins of all degrees, aunts, uncles, grandparents, and grandchildren are all considered part of a familial relationship. Additionally, relationships formed through marriage, such as in-laws and step-families, are also included. The term “marriage” will be interpreted to encompass same-sex marriages that are legally recognized in the jurisdiction where the marriage was officiated.
However, a familial relationship between an alien and an employer does not automatically imply the absence of a legitimate job opportunity. Ultimately, the determination of whether a bona fide job opportunity exists in situations where an alien has a familial relationship with the employer hinges on two key factors: whether the employer corporation genuinely determines a need for alien labor and whether there is a genuine opportunity for American workers to compete for the available position.
What is a Prevailing Wage Determination (PWD) in PERM?
A PWD is issued by the Department of Labor and sets the minimum wage the employer must pay for the offered position based on job duties, location, and experience.
Can bonuses or commissions be included in the prevailing wage?
Yes, but only if they are guaranteed. Non-guaranteed bonuses or commissions cannot be used to meet prevailing wage requirements.
Under what circumstances would mailing a labor certification application be more effective than submitting it electronically?
Mailing an application won’t guarantee a higher success rate. Upon receipt at the National Processing Center, the mailed-in application is date-stamped. Processing won’t commence until a data entry person enters the application’s details into the system using the exact information from the ETA Form 9089. Once entered, the mailed-in application undergoes the same automated analysis and manual scrutiny as an electronically submitted application. If two identical applications, one submitted electronically and one mailed-in, are processed, there will be no difference in their processing. The only difference will be in processing time; mailed-in applications take longer due to the additional time required for mailing and data entry. Remember, the online system detects errors (e.g., entering four digits for a zip code instead of five) before allowing submission. However, the data entry person must input the information precisely as shown on the application; any mistake on the form may trigger an audit or denial.
Is it acceptable to use other forms of media besides the alternative steps outlined in the professional occupations recruitment provision? For instance, can we consider advertisements displayed on movie theater screens, airport screens, bus sides, billboards, and so on as additional steps?
No, it is not allowed to use any other media besides the alternative steps mentioned in the professional occupations provision as additional steps. The restriction on acceptable media is partly due to concerns about verifiability. However, employers are not prohibited from using these means in addition to the regulation requirements.
How long must the employer publish a notice of filing in its in-house media?
If an employer typically recruits for similar positions within its organization through internal media channels, it must publish the notice of filing in its internal media in accordance with its standard recruitment procedures for similar positions or for a period of 10 consecutive business days, whichever is longer.
I have multiple job openings for the same occupation and job classifications, all at the same pay rate. Is it possible to post a single Notice of Filing for all these positions?
Yes, an employer can fulfill the Notice of Filing requirements for multiple positions within the same job classification by posting a single Notice of Filing. However, this single posting must adhere to the Department of Labor’s regulations for each application. For instance, it must include the appropriate prevailing wage information and be posted for 10 consecutive business days within the 30 to 180-day window before submitting the application. On the other hand, separate notices would be necessary for different job duties, such as an attending nurse and a supervisory nurse.
Is it allowed for an employer to use an electronic national professional journal instead of one Sunday newspaper?
No, the employer must use a printed journal to fulfill the requirement of using a journal as an alternative to one of the Sunday advertisements.
After completing the recruitment process but before submitting the ETA Form 9089, the sponsoring company’s name was changed due to its full acquisition by another company. Does the sponsoring company name used in the recruitment advertisements have to align with the company name listed on the ETA Form 9089?
The employer must use its legal name during recruitment. However, the Application for Permanent Employment Certification (ETA Form 9089) must be filed in the employer’s legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between recruitment and submission, causing a discrepancy between the employer’s name on the job advertisement and the employer’s name on the submitted ETA Form 9089, the employer must be prepared to provide documentation during an audit to prove its succession in interest. This determination considers the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity related to the job opportunity.
How comprehensive should the recruitment report be in detailing the outcomes achieved through the employer’s recruitment efforts?
Employers must categorize the lawful job-related reasons for rejecting U.S. applicants and provide the number of applicants rejected in each category. To determine if a U.S. worker is able, willing, qualified, and available for a job opportunity, the employer must include the following information in its recruitment report: (1) the total number of U.S. applicants who applied, (2) the total number of U.S. applicants hired, and (3) if applicable, the total number of U.S. applicants rejected, categorized based on lawful job-related reasons, and the number of applicants in each category.
As a best practice, employers should also indicate the total number of U.S. applicants who were interviewed and list the names of each rejected U.S. worker under each category. Categories should be unique to each reason or multiple reasons for rejection. For instance, a U.S. applicant lacking the minimum educational requirement should be categorized and counted under “applicants who lack required education.” If a second U.S. applicant also lacked the minimum educational requirement but was also rejected for lacking special skill requirements, that applicant should be categorized and counted under “applicants who lack required education and special skills.” This categorization allows the Certifying Officer to clearly identify the reason for each U.S. worker’s disqualification and avoid unnecessary information requests. If the total number of U.S. applicants rejected does not match the total number of applications received, the application may be denied.
What is “business necessity” in PERM Labor Certification?
Business necessity allows employers to justify special job requirements if they are essential to the role and reasonably related to the job duties, such as requiring a foreign language due to business needs.
How long must recruitment be conducted before filing PERM?
Recruitment must take place within the 6 months before filing, and the employer must wait at least 30 days after the last recruitment step before submitting the PERM application.
What happens if a PERM labor certification application is audited?
If audited, the employer must submit supporting documentation within 30 days. Failure to respond properly may result in denial, supervised recruitment, or a potential ban on future PERM filings.
Is it possible to withdraw a PERM application in the event of an audit?
An application cannot be withdrawn once it has been selected for audit. However, if circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. It’s important to note that an employer cannot forego the audit by claiming that the application is no longer valid or applicable. The employer will be held accountable to the audit provision standards and any potential consequences that may arise from the audit.
I filed an application that was denied based on incorrect or missing information on the Form ETA-9089. Can I correct this?
An employer cannot make any changes or corrections to the Form ETA-9089 as it was initially filed. However, if the employer can demonstrate that a correction is necessary to rectify a mistake made by the Department of Labor, it can request corrections to the denied application by submitting a written Request for Reconsideration within thirty (30) calendar days from the date mentioned on the denial letter.
If the Certifying Officer (CO) accepts the correction, it will make the necessary changes to the Form ETA-9089. Consequently, the application will be returned to the “in process” status and will be processed according to the priority date (please note that the priority date remains unchanged). On the other hand, if the CO does not accept the employer’s correction, it will issue a Notice of Decision (Notice). This Notice will inform the employer that it has the option to request review by the Board of Alien Labor Certification Appeals (BALCA), but it must formally do so in writing no later than thirty (30) calendar days from the date on the Notice.
If my application for PERM labor certification is denied, how long do I have to wait before I can submit a new application?
Upon receiving the denial notification, one can file a new application at any time, unless a request for review to the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, one can’t file a new application for the same occupation and the same alien.
Does the Office of Foreign Labor Certification expedite the processing of PERM labor certification applications?
The Office of Foreign Labor Certification (OFLC), as a longstanding policy, does not expedite the processing of applications based on the unique circumstances of any individual employer, foreign worker, or family member.
Can a PERM labor certification approval be revoked after it is granted?
Yes, a PERM labor certification (Form ETA 9089) can be revoked even after it has been granted and certified by the Department of Labor (DOL). The DOL retains the authority to revoke a certification if it finds that the approval was not justified. This can happen due to discovered fraud, material misrepresentation, or significant errors made during the application process.
When must the employer start paying the prevailing wage?
The employer must pay the prevailing wage once the employee obtains permanent residence and begins working in the sponsored position.
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