Permanent Labor Certification (PERM)

Permanent Labor Certification Process (PERM)

Individuals seeking employment-based permanent residence are often required to first undergo a labor certification process with the Department of Labor (DOL). (The labor certification requirement is waived for EB-1, EB-2 National Interest Waivers, EB-4, and EB-5 classifications). The labor certification process conducted by the DOL is to ensure that the employer has demonstrated that there are no U.S. workers who are able, qualified, or willing to take the position offered to the foreign national. Additionally, the employer must show that admission of the foreign national will not adversely affect the wages and working conditions of similarly situated U.S. workers.

The labor certification is processed through the Program Electronic Review Management System (PERM). Under PERM, the labor certification process must include the following:

• Prevailing Wage: A prevailing wage determination must be obtained from the State Workforce Agency (SWA). The offered wage must be equal to or greater than the prevailing wage.

• Notice of Filing: A notice of filing must be posted for ten consecutive business days at a location such as an employee notification bulletin board in an area accessible to all of the employer’s employees. Additionally, a notice of filing must be posted in any in-house company media in which jobs are ordinarily posted.

• Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing. Please note that recruitment requirements vary depending on whether or not the labor certification is for a professional or nonprofessional occupation.

1. Non-professional positions: Required recruitment is a job order placed with the State Workforce Agency (SWA), 2 ads placed on two different Sundays in a newspaper of general circulation in the area of intended employment, and an internal notice of the filing at the worksite, as well through any in-house company media in which jobs are ordinarily posted, for 10 consecutive business days.

2. Professional occupations: In addition to the above, recruitment must also include 3 extra forms of recruitment such as: (1) attendance at job fairs; (2) advertisement of the position on the employer’s website; (3) advertisement of the position on a job search website other than employer’s, including an ad on a newspaper’s web site in conjunction with a print ad; (4) participation in on-campus recruiting; (5) placing a notice in a newsletter or publication of a trade or professional organization; (6) retaining private employment firms; (7) including the position in an employee referral program, if it includes identifiable incentives; (8) placing a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) advertisement in local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) placing radio and television advertisements. The employer must conduct three separate recruitment steps (i.e. may not conduct one of the three steps three times).

• Filing: The Application for Permanent Employment Certification, ETA Form 9089, may be electronically filed with DOL’s National Processing Center. Supporting documentation is not submitted with the application but should be retained in case of audit (Employer is required to retain all supporting documentation for 5 years from the date of filing the PERM).

The date the labor certification application is received by the DOL is deemed the filing date and establishes the foreign national’s “priority date” for visa availability purposes. Current processing times can be found on the DOL website at http://icert.doleta.gov/. Upon approval of the PERM, the certification is valid for 180 days and the foreign national can file a Form I-140, Immigrant Petition for Alien Worker, with the USCIS during that period.