PERM Labor Certification Process Overview
Stage I: Filing the Labor Certification Application with the Department of Labor.
U.S. immigration law prohibits the entry of certain foreign nationals to work permanently in the U.S. unless the Secretary of Labor has certified that there is a shortage of workers to perform such labor and that the employment of the immigrant worker will not adversely affect wages and working conditions. This process, known as labor certification, is the first stage in a three-stage process for most foreign nationals obtaining a green card through employment. It is this first stage that recently underwent major changes and revisions.
Effective March 28, 2005, the Department of Labor (DOL) implemented a new system governing the labor certification process. The new Program Electronic Review Management (PERM) system intends to streamline the labor certification process, while at the same time guarding against potential fraud. The redesigned system intends to reduce the average time needed to process a labor certification to between 45 and 60 days.
- Pre-filing Recruitment Steps. PERM requires employers to conduct recruitment before filing their labor certification applications with DOL. There are two separate recruitment standards for professional occupations and nonprofessional occupations provided for in the new regulations. Generally, for nonprofessional occupations, employers must place a job order and two Sunday newspaper advertisements. For professional occupations, employers must conduct three (3) additional recruitment steps.
- Prevailing Wage. Employers must obtain a prevailing wage determination from the relevant State Workforce Agency (SWA). The prevailing wage determination is the amount that similarly employed workers are paid in the area of intended employment. It is determined utilizing a four level wage system commensurate with experience, education, and level of supervision. An employer must pay the foreign national worker 100% of the determined prevailing wage if the green card is approved.
- Filing the Application. After recruitment efforts and securing a prevailing wage determination, employers then file their application forms electronically or by mail directly to a DOL Employment and Training Administration (ETA) application center. The application consists of one form, ETA Form 9089. An application may be submitted online through the Employment & Training Administration’s website. The DOL recommends that employers file electronically as it affords more expeditious processing and ensures that only fully completed applications are submitted.
- Recruitment Report & Review. PERM requires extensive documentation to be maintained that outlines and records the entire recruitment process. Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if its application is selected for audit or if the Certifying Officer otherwise requests it. The employer is required to retain all supporting documentation for five years from the date of filing.
- Approval. If the ETA approves the application, the ETA Form 9089 is “certified” (stamped) by the Certifying Officer and returned to the employer. If submitted online, Form 9089 must be printed out, and signed by the employer. The employer must then file Form I-140, an Immigrant Petition for an Alien Worker, with the U.S. Citizenship and Immigration Services (USCIS). The employer attaches the certified Form 9089 to a completed Form I-140, along with the pertinent fees, and submits the package to the appropriate USCIS Service Center.
- New Rule: Starting July 16, 2007, approved labor certifications will be valid only for 180 days and will expire after this time period. Employers must submit the approved labor certification along with the Form I-140 within 180 calendar days. See USCIS Notice on New 180 Day Rule.
Revised Feb. 3, 2008.