Labor Certification Attorney | PERM Lawyer

PERM Labor Certification is a three-step online process implemented by the U.S. Department of Labor (DOL) and known as the Program Electronic Review Management System.

Applicants in the EB-2 and EB-3 visa categories must go through and obtain an approved PERM Labor Certification from the DOL as a prerequisite to filing for the green card.   

Interested in Labor Certification or PERM? Contact our PERM labor certification attorney in Miami, Florida USA to assist you with the PERM.  

1. What is PERM Labor Certification

PERM Labor Certification is the first step in the process of applying for employment-based green card. The PERM Labor Certification process is essentially a test of the U.S. labor market to demonstrate to the DOL that the sponsored foreign worker is not impacting U.S. workers and the U.S. labor market in a negative way by filling positions that could otherwise be filled by qualified U.S. workers.

A U.S. company begins the process of sponsoring a foreign worker by filing an application in the PERM system. If the PERM Labor Certification is approved, it is followed by filing an I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national employee. Finally, based on the approved I-140, the foreign worker can apply for adjustment of status in the United States or process an immigrant visa at a U.S. consulate or embassy abroad to become a lawful permanent resident.

Unless waived, all applicants in the EB-2 and EB-3 visa categories require an approved PERM Labor Certification application to apply for the employment-base immigrant visa (green card).

The PERM Labor Certification for EB-2 visa may be waived with the National Interest Waiver (EB-2 NIW) and the foreign worker can self-petition even if self-employed if the applicant proves that the endeavor is in the national interest of the United States.

2. Who is eligible for PERM Labor Certification?

Foreign workers eligible to apply for PERM Labor Certification are:

• Unskilled Workers – Able to perform unskilled labor requiring less than 2 years training or experience
• Skilled Workers – Possess at least 2 years of job experience, education, or training that meets the job requirements
• Professionals – Possess a U.S. bachelor’s degree or foreign equivalent, and that a bachelor’s degree is the normal requirement for entry into the occupation.
• Advanced Degree Professionals – Possess a US advanced degree or its foreign equivalent (a bachelor’s degree or foreign equivalent degree plus 5 years of post-bachelor progressive work experience in the field and an advanced degree is normally required for the job.
• Individuals of Exceptional Ability in the sciences, arts or business

3. PERM Labor Certification Requirements

To start the PERM process foreign workers must meet the following PERM Labor Certification Requirements:

• Full-Time Permanent Employment. You must have a job offer for permanent full-time employment from a U.S. employer
• U.S. Employer. The U.S. employer and offered position must be based in the United States.
• Wage Offered. The wage offered is equal or higher than the DOL prevailing wage. The U.S. employer must be willing to pay the offered wage when the foreign employee becomes a permanent resident.
• Bona Fide Job Opportunity. The offered position must be a bona fide job opportunity
• Mandatory Recruitment Efforts. U.S. employer tested the local labor market for U.S. workers. The U.S. employer must provide evidence that there are no U.S. applicants willing, able and/or qualified for the position. Supplementary documents relating to recruiting efforts must be made available if requested. The U.S. employer is obligated to maintain an audit file with additional proof of attempts at recruitment.

4. PERM Process

The PERM Labor Certification Process includes the following steps:

• US employer obtains a Prevailing Wage Determination (PWD) from DOL;
• US employer conducts the mandatory recruitment efforts to test the U.S. labor market. The labor certification process requires several steps of recruiting which must be undertaken before the PERM application;
• US employer prepares the recruitment report;
• US employer files the PERM ETA Form 9089 Application for Permanent Employment Certification with DOL;
• DOL verifies Form 9089;
• If DOL selects the petition for auditing, the US employer must respond to the DOL audit within 30 days;
• If DOL certifying officer denies the ETA Form 9089, the US employer receives a determination which includes the reason for the denial;
• If DOL approves the Labor Certification ETA Form 9089, the US employer must file I-140 Immigrant Petition for Alien Worker with USCIS within 180 days of the PERM approval or it will expire. 15 days premium processing is available for the Immigrant Petition filed with USCIS.
• When the form I-140 is approved, the foreign worker must register for Permanent Residence by filing Form I-485 with USCIS or applying for an immigrant visa at a U.S. Consulate abroad.

To summarize the PERM-based green card process has 3 steps:

• The labor certification stage;
  • Job Requirements
  • Request PWD
  • Recruitment
  • Submit PERM Labor Certification application to DOL

• I-140 immigrant visa petition; and
• Adjustment of status or consular processing
  • Check priority status
  • Submit Form I-485 or DS-260
  • Foreign worker provides biometrics and attends USCIS interview or interview at US Consulate abroad.

5. PERM Labor Certification Recruitment Steps

PERM Recruitment steps to test the labor market for both professional and non-professional positions must be conducted within 6 months (180 days) of filing the Labor Certification Application with the DOL and be completed more than 30 days before filing.  

The PERM Recruitment Steps to follow depend on whether the position offered by the U.S. employer is professional or non-professional. A professional position requires additional recruitment steps not needed for a non-professional position. Additionally, the selection of an appropriate newspaper for advertising can depend on the professional or non-professional status of the position, as some newspapers of general circulation may be used more frequently for advertisements of non-professional positions or vice versa. Contact your PERM labor certification attorney to discuss the recruitment steps appropriate in your circumstances.

A professional position is a position that requires a bachelor’s degree or higher as a usual education requirement. Foreign equivalent of a degree may qualify.

A non-professional position is one that does not require bachelor’s or higher degree as a usual requirement for the occupation.

For both professional and non-professional positions, the employer must wait 30 days after the end of the recruitment period before filing the ETA 9089. 

PERM Recruitment Steps for Professional Positions

The mandatory PERM recruitment steps for professional positions are:

1. Place a job order with the State Workforce Agency for 30 days;
2. Place a job advertisement in 2 separate Sunday print editions of the major local newspaper, which is the newspaper in general circulation for the area of employment; and
3. Post the Notice of Filing a Labor Certification Application at the locations of employment for at least 10 consecutive business days or providing a copy of the notice to a local union if there is a collective bargaining agreement.

If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer may then use the edition with the widest circulation in the area of intended employment.

After the mandatory recruitment, the US employer must meet the additional PERM recruitment requirement.

The US employer must select from the following a combination of any 3 additional PERM recruitment options:

1. Recruit in-person at a job fair;
2. Post the job opening on employer’s website;
3. Post the job opening on a known job-search website that is not affiliated with the employer;
4. On-campus recruitment at a school;
5. Place a notice of the opening in a relevant trade or professional organization’s publication;
6. Retain a private recruitment firm to conduct a job search for applicants;
7. Post the position with a campus placement office;
8. Post a newspaper advertisement with a local or ethnic newspaper;
9. Recruit for the position on local radio or television; or
10. If the employer has an employee referral program that identifies specific incentives for making referrals, then the employer may notify employees that the position is available and part of the incentivized program.

PERM Recruitment Steps for Non-Professional Positions

The PERM recruitment steps for non-professional positions are:

1. Place a job order with the State Workforce Agency for 30 days;
2. Place a job advertisement in 2 consecutive Sunday print editions of the major local newspaper; and
3. Post the Notice of Filing a Labor Certification Application at the location of employment for at least 10 consecutive business days or providing a copy of the notice to a local union if there is a collective bargaining agreement.

No supplemental PERM Recruitment is required for non-professional positions.

6. PERM Recruitment Period

The PERM recruitment period is at least 30 days for both professional and non-professional positions. The PERM application must be filed at least 30 days after the completion of all PERM recruitment requirements within the recruitment period.

7. PERM Labor Certification Processing Time

The overall PERM Labor Certification Processing Time is 14 to 18 months.

Because the PERM Labor Certification process consists of many steps below is a breakdown of the PERM processing time for each step:

• Prevailing Wage Determination: 5 to 6 months
• PERM Recruitment Steps: 1 to 3 months
• Labor Certification ETA Form 9089: 8 to 9 months
• If DOL audit: 8 to 9 months

8. PERM Cost and Fees

The PERM costs are:

• Prevailing Wage Determination – $0

• PERM Labor Certification ETA Form 9089 – $0
• PERM Recruitment – $2,000 – $3,000 associated with the recruitment process such as placing ads and interviewing potential U.S. candidates; the costs and fees of the PERM application must be paid by the employer 
• USCIS I-140 Fee – $700; must be paid by the employer 
• Premium Processing Fee – $2,500 per employee. The fee is optional, paid to process the petition within 15 days.

• USCIS I-485 Fee with employment authorization – $1,225; Can be paid by the employer or employee
• Visa Interview Fee – $345 per employee; can be paid by the employee

9. Travel During PERM process

Can you travel during PERM process? Yes, you can travel abroad during PERM labor certification process. In fact, U.S. law does not prohibit or prevent foreign workers from travelling internationally while the labor certification is pending. However, you must have a valid visa to enter the United States.

Malescu Law can assist

The PERM Labor Certification is complex involving a number of steps, regulatory compliance and interactions with various government agencies including the U.S. Department of Labor, the U.S. Citizenship and Immigration Services and U.S. Consulates abroad.

Our labor certification lawyers in Miami, Florida USA assist employers with PERM recruitment efforts, advertisement and advising as well as preparing and filing the labor certification application and Immigrant Petition. Contact us or schedule a consultation.

Malescu Law P.A. – PERM Immigration Lawyers