PERM labor certification

PERM labor certification is a mandatory step a United States employer must complete with the Department of Labor before filing an I-140 petition for an employment-based immigrant visa.

What is PERM labor certification?

PERM labor certification (Permanent Labor Certification) is the permanent labor certification programme run by the Employment and Training Administration (ETA) of theUnited States Department of Labor (DOL).

The main purpose of the programme is to assess whether hiring an employee who is not a United States citizen would prevent the hiring of equally capable United States workers for similar positions. The ETA assesses whether hiring a non-national would adversely affect the working conditions or wages of United States workers employed in a similar field.

An employer wishing to hire someone who is not a United States citizen must obtain PERM certification before they may file a petition withUnited States Citizenship and Immigration Services (USCIS)for an employment-based visa (such as thevisa EB-2).

Once the employer has obtained certification, they may proceed to file USCIS Form I-140 (officially named the “Immigrant Petition for Alien Worker”). In reviewing the petition, USCIS must determine:

• Whether the job in question is equivalent to the job assessed by the ETA
• Whether the foreign worker is qualified for the job

However, before the employer can get to the step of filing Form I-140, they must first present the case to the United States Department of Labor.

The PERM labor certification application process

To obtain permanent labor certification, the employer must fileForm 9089(officially named the “Application for Permanent Employment Certification”). A PERM application may be filed in a number of different ways, depending on the circumstances. In this section, the article will focus on the “basic labor certification process”, as set out in § 656.17 of the Code of Federal Regulations (CFR) and in the instructions to Form 9089.

Basic requirements

Under the Federal Regulations (CFR § 656.10 (c)), to apply for permanent labor certification the employer must attest to the following:

• That the vacancy was advertised to United States workers
• That the wage offered to the prospective employee is greater than or equal to the “prevailing wage” in that field. Here, “prevailing wage” refers to the wage set out in the relevant collective bargaining agreement (CBA) or the average wage for employees in a similar field (see CFR § 656.40). To meet this condition, the employer must request a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA) for the relevant state. A list of SWA offices can be found on the DOL website.
• That the employer can put the prospective employee on the payroll before or on the date they arrive in the United States
• That any United States citizen applicants were rejected for lawful reasons
• That the wage is not dependent on bonuses, commissions or financial incentives of any kind. Unless the employer can guarantee that the prospective employee will continue to earn a wage greater than or equal to the “prevailing wage” mentioned above
• That the employer has sufficient funds actually to pay the promised wage
• That, in making this job offer, the employer is not discriminating on the basis of age, sex, religion, race, creed, colour, national origin, disability or citizenship status
• That the job in question has not become available because of a strike or work stoppage
• That the working conditions and terms of employment meet any relevant legal standards, including all Federal, state and local legislation
• That the job in question is a full-time, permanent position
• That the employer is not the same person as the individual who is not a United States citizen

Recruitment before filing

In addition to meeting these basic requirements, the employer will have to carry out certain “recruitment steps” before filing (as set out in CFR § 656.17). Where the vacancy is a “professional occupation” — in which case the candidate must hold at least a bachelor’s degree, or equivalent experience, to be hired — the employer must, at a minimum, place a job order with the SWA for at least 30 days, print at least 2 advertisements in 2 separate Sunday editions of a general circulation newspaper, and select 3 additional recruitment methods from the following list:

• Television or radio advertisements
• Local and ethnic newspapers
• A job posting on the business’s website
• Job fairs
• Campus recruitment
• Trade organisations
• Employment agencies
• Job search sites, such as Indeed or Monster
• Employee referral programmes with incentives
• Campus placement offices

For “non-professional occupations”, the employer must place a job order with the SWA and print 2 newspaper advertisements. All recruitment activity must take place in the 6 months before the date of filing — but no less than 30 days before it.

Note: 1 of the 3 additional recruitment methods (from the list above) may take place within the 30 days before filing, but this is the only exception.

Notice

The employer will need to give advance notice that they will be filing a PERM application. This notice must be documented and given to the union representative of any current employees in a similar role, or where there is no such representative, to the workers themselves at their place of work. The notice must meet the following conditions:

• It must be given at any point between 30 and 180 days before the PERM application is filed.
• It must state the wage offered to the prospective employee — and that wage must exceed the prevailing wage in that field, as determined by the SWA.
• It must include the address of the Certifying Officer handling the application.
• It must state that anyone may submit evidence relating to the PERM application directly to the Certifying Officer.
• It must state that a PERM application will shortly be filed.

Once the above requirements are met, and notice has been given within the appropriate timeframe, the employer may begin completing the application for permanent labor certification.

The application

To obtain PERM certification, the employer will need to file Form ETA 9089. They may file this form online or by post.

Where using ordinary mail, the employer, the foreign worker, and the person preparing the application must sign the form before sending it to the DOL processing centre. Where filing online, they will need to sign an attestation upon receipt. For audit purposes, all documentation gathered during the application process must be retained for at least 5 years after Form 9089 is filed.

To obtain successful PERM approval, and to avoid any unnecessary audits, the employer must make sure the application is completed fully, truthfully and consistently. It may be helpful — for whoever is completing the form — to gather certain basic information beforehand, including:

• The full legal name and address of the business’s main office or headquarters
• The total number of employees
• The year the business began operating
• The employer’s 9-digit Employer Identification Number (EIN)
• The North American Industry Classification System (NAICS) code. This code can be found on the NAICS website.
• The contact details of the business’s main point of contact, including email and telephone number. These details must be different from the attorney’s contact details, which may also be provided elsewhere on the application

As mentioned above, in the “Requirements” section, the employer will need to request a PWD from the appropriate SWA office — and should do so at least 150 days before filing. Whoever completes the PERM application will use the PWD to provide information such as:

• The prevailing wage tracking number (where issued)
• The Standard Occupational Classification (SOC) code. The code must refer to the occupation entered on the original PWD
• The prevailing wage rate provided by the SWA
• The source of the prevailing wage. Sources include:
  • The Occupational Employment Statistics (OES)
  • A Collective Bargaining Agreement (CBA)
  • The McNamara-O’Hara Service Contract Act (SCA)

The employer should document the recruitment process and retain the information relating to the job itself — including duties and hiring requirements. Whoever completes the form will need to answer questions relating to:

• The recruitment methods the employer used
• The start and end dates of the SWA job order
• The names of the newspapers containing the job advertisements
• The dates of all recruitment events (where applicable)
• The dates of any job postings on sites such as Indeed and Monster (where applicable)
• Whether the employee needs to speak more than 1 language in order to do their job
• Whether the employee needs more than a high school education

The employer will have to provide details of the prospective foreign employee, including their address, telephone number and information relating to their work experience. And where someone other than the employer is preparing the application, they must provide certain basic information about themselves, including their name, job title and email address.

Once Form 9089 is complete, and all the above requirements have been met, the employer may file their application.

PERM processing times

The average PERM processing time is 483 days. Note that PERM processing times may vary considerably depending on the situation. For a more detailed breakdown, visit the DOL website.

To speed up the process, employers may file the PERM application electronically using the Permanent Online System. Using the PERM tracker, they may follow the progress of the case. There are benefits to filing the petition electronically, including:

• Faster PERM processing times
• The ability to track the PERM application
• Retrieving copies of previously filed Forms 9089
• Quick confirmation of PERM status
• The ability to reuse information quickly across several applications

This is particularly useful where the employer plans to file several Forms 9089.

What is the PERM 365-day rule?

The 365-day rule for PERM applications allows holders ofvisa H-1Bto extend their status in one-year increments while their PERM application is still being processed by the Department of Labor. This helps foreign workers avoid interruptions in employment while waiting, as PERM processing may take 18 months or more.

To be eligible for a 1-year extension:

• The PERM application must have been pending for at least 365 days.
• The H-1B worker must be in valid status at the time of the request.
• The extension request must be filed before the current H-1B status expires.

This rule provides a way for workers to continue working without interruption during a lengthygreen cardprocess.

PERM costs

Although there is no filing fee for Form 9089, there are a number of costs associated with PERM. For example, the employer may wish to engage an attorney who can prepare all the paperwork and advise throughout the process. Attorney’s fees vary, but employers may expect to pay, at a minimum, from USD 2,000 to USD 6,000.

The employer will also need to cover all the costs relating to recruitment. This means they will have to pay for 2 separate print advertisements, which may cost around USD 500 each. This price may vary depending on a number of factors, including the newspaper’s circulation, the size and colour of the advertisement, and the location of the publisher.

In addition to these PERM-related costs, the employer will have to cover all the filing fees for any forms filed with USCIS. The fee for Form I-140 — filed by the employer on behalf of the green card beneficiary — is USD 715.

These costs do not include any additional overheads, or other incidental fees, associated with the recruitment process.

After PERM approval: EB-2

Once the employer receives certification, they may then begin filing USCIS Form I-140, effectively starting theUnited States permanent resident cardprocess for the foreign employee.

The petitioner must file the I-140, together with the permanent labor certification (where required), within 180 days of the PERM approval date. Otherwise the certification will expire, and they will need to go through the DOL application process again. Unless otherwise provided by USCIS, a Form I-140 without a PERM application — and all the required signatures and seals — will be rejected.

In reviewing the petitioner’s I-140, USCIS will assess whether the foreign worker was qualified for the position when the PERM application was first filed. The criteria will vary depending on the type of visa the green card applicant is seeking. One common type is the EB-2 visa.

Frequently asked questions about PERM