The PERM labor certification process represents a basic requirement demanded of US companies that wish to sponsor national foreigners to get a Green Card.
If you are looking for advice on any visa matter, the Los Angeles immigration lawyers at Lluis Law can help. Our lawyers are experts in all types of American visas based on employment, business and investment.
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What Is The PERM Labor Certification?
The PERM labor certification in the United States is used to sponsor a foreign national worker belonging to the EB-2 visa and EB-3 visa categories. This certification must be requested from the United States Department of Labor ( DOL ).
PERM stands for Program Electronic Review Management. It is the system used to obtain permanent Labor Certification in the USA. In addition, it is the first step in obtaining an employment-based immigrant visa or Green Card.
PERM Labor Certification Considerations
- The PERM labor certification went into effect on March 28, 2005 in the US;
- Its purpose is to regularize and streamline work permit applications for foreign national workers;
- Previously, this same process took years and its approval was subject to the subjective criteria of the immigration official;
- This process is different from the Labor Condition Application (LCA), which is used to obtain temporary work visas H-1B and E-3 visas;
- DOL has a list of occupations with insufficient demand for work in the US (Annex A) established in 20 CFR 656.15, that is, there are not enough US workers so foreign workers can apply;
- Schedule A states that the hiring of foreign nationals does not affect the wage level or working conditions of similarly employed US workers.
Labor certification should not be confused with work permits (Employment Authorization Document – EAD). Such permits are issued to people who apply for asylum or refuge in the United States and are waiting for a response from the government.
The United States PERM Labor Certification Step By Step In 2022
The process to apply for the United States PERM labor certification consists of several steps:
Step 1: Post A Job Offer In The United States
The first step requires a US employer or company to search for a worker in the United States. Said worker may be a citizen or lawful permanent resident who can meet the requirements of the job title.
They can search for a worker through a job posting by:
- Radio and/or television advertisements;
- Local newspapers;
- The organization’s website;
- Employment organizations or job search websites;
- Labor or employment fairs.
Generally, this process must be completed within 30 to 180 days. Such a process makes it possible to guarantee that no American resident or citizen is available or qualified to perform the job.
Step 2: Request A Prevailing Wage Determination From The DOL
The employer or US business must provide all job details and submit an online application to DOL for Prevailing Wage Determination (PWD).
Only DOL will be the one to determine the prevailing wage for the job position that the foreign national worker will have.
Said salary will be established based on:
- Geographic location;
- Minimum requirements for the job;
- Job functions.
Once DOL determines the prevailing wage, this will be the wage that the US employer or business must pay the foreign national worker at the time the alien worker becomes a permanent resident.
Note: The employer can pay the employee more, but cannot pay less than what the DOL stated in the PWD. This wage determination protects workers and assures them that they will not be paid less than what is required for the job.
If you want to know more about workers’ rights, we invite you to read our article on workers’ compensation in California.
Step 3: Recruitment Process
Once the US employer or company has received the PWD, job advertisements can be placed to assess the labor market. It should be noted that:
- This labor market assessment is for PERM purposes and will have to be done under the rules established by DOL;
- This stage can take approximately 2 months;
- If a US worker who is willing, qualified, or trained shows up, the DOL will stop this process and you will have to wait at least 6 months to re-evaluate the labor market.
Step 4: Submit The PERM Labor Certificate Application To DOL
If the above step has been completed without finding a qualified and willing US worker, the US employer or company can file the PERM application with DOL. For this you must:
- File DOL ETA Form 9089 online with DOL;
- Wait for the response from DOL. The time of this process can range from 6 months or so, but the time can be extended if the case is audited.
Step 5: File Form I-140 With USCIS
Upon approval of the labor certification by the DOL, the employer will need to file with USCIS Form I-140, Petition for a Alien Worker.
- This form should only be filed with USCIS if notification of PERM approval is received;
- The presentation of the I-140 will have a validity period of 180 days. Such period begins from the day the PERM approval notice is received;
- Processing time is typically 6-8 months, but Form I-907, Application for Premium Processing, can be filed with USCIS to expedite time.
Step 6: Wait For Priority Date Update
An alien visa number is not usually immediately available, so keep informed with the visa bulletin.
If the priority date is in effect when the labor certification is approved, Form I-485, Application to Register Permanent Residence or Adjust Status, may be filed with USCIS.
Not sure what the immigration priority date is? Check out our post for more information.
Step 7: Request Form I-485
The I-485 application is for the alien employee to obtain the Green Card. As long as the priority date is available, the I-485 can be filed alongside the I-140 or after the latter has been approved.
- This step is focused on the eligibility of alien employees to receive a Green Card;
- The employee who will receive the Green Card must be absent of a criminal record or other reasons that make him ineligible for the Green Card;
- The adjustment of status process allows the foreign national worker to apply for travel or employment authorization while the I-485 is pending.
Step 8: Go To The Interview With USCIS
Time after all the documentation required for the labor certification has been submitted, USCIS will notify the foreign national worker that they must attend an interview.
- At the interview, the immigration officer will review the foreigner’s application for the Green Card and all the documents that they posses;
- During the interview, the alien must confirm that the job offer is still valid and available for them;
- The alien must submit all their original immigration documents. These might be:
- Medical exam. Must be completed on Form I-693, medical report, and immunization record;
- Approval of your visa;
- Visa stamps.
Don’t have a stamp in your passport? Don’t worry, you can get more information on this topic in our article “My passport was not stamped when I entered the United States”.
How Do I Get My PERM Labor Certification?
Obtaining a PERM Labor Certification for aliens requires five conditions:
- Meet the qualifying requirements for the employment visa;
- Have a sponsoring employer willing to process the labor certification;
- Request the labor certificate from the United States Department of Labor;
- Obtain permanent labor certification, issued by the Employment and Training Administration of the Department of Labor;
- File an employment-based petition with USCIS.
Finally, if the worker is abroad, it is required to apply for the approval of an immigrant visa. This procedure is carried out through the so-called consular process at an embassy or consulate.
What Should A Labor Certificate Include?
For an application for a labor certificate to be valid, the petitioner and beneficiary must sign the ETA 9089 form. Additionally, it must have the DOL certification seal, the signature of the DOL certifying officer, and the date of certification.
Documentation For The PERM
- Diagnosis of the local labor market with evidence of a lack of trained personnel and/or eligible for employment;
- Approved documentary evidence related to:
- Request for prevailing or minimum wage. DOL determines the prevailing wage based on location and job requirements;
- Work orders;
- Notices placed in the media and in employment organizations;
- Job advertisements placed on the company’s website;
- United States Employer Audit File;
- Immigrant Petition;
- Completed ETA Form 9089.
What Are The Requirements To Apply For A PERM Labor Certification?
Federal Regulations ( CFR § 656.10 (c) ) establish that the requirements that a US employer or business must meet to apply for a PERM labor certification are as follows:
- Wages offered to the alien worker must be greater than or equal to the prevailing wages for the job;
- The job listing was made available to American workers;
- The prospective alien employee will be on the payroll prior to or on the day of arrival in the United States;
- Salaries do not depend on bonuses, commissions or economic incentives of any kind. Unless the employer guarantees that the prospective employee will continue to earn wages greater than or equal to prevailing wages;
- Any job applicant who is American has been denied the job title for legal reasons;
- Employer has enough money to pay the promised wages;
- The job in question is a full-time or permanent job position;
- The employer is not the same individual as the non-US citizen;
- Working conditions and terms of employment comply with legal regulations, including federal, state and local statutes.
- During the job offer, the employer did not discriminate against the prospective alien employee on the basis of age, sex, race, religion, national origin, color, disability, or citizenship.
If you have suffered any type of abuse related to the previous point, immediately contact our discrimination lawyers in Los Angeles.
Additional Requirements for the Employer
Additionally, the employer must meet the following criteria:
- Make sure the alien worker meets the eligibility criteria;
- Demonstrate to DOL that qualified or willing US workers are not available for the job;
- Demonstrate that the hiring of a foreign national worker will not adversely affect the US labor market.
- Have an account and registered user on the official DOL website. If you don’t have it yet, you can register through the following link.
Who Can Be The Employer Or The Company That Sponsors A Foreign National Worker?
The employer or sponsoring company must be:
- American citizen;
- Micro business;
- Small company;
- Medium business;
- Big company.
Who Can Apply For The PERM Program?
- Any alien who wishes to work in the United States and meets all the requirements for it;
- Aliens who are lawfully in the US;
- University graduates, with master’s degrees or a doctorate;
- Alien investors;
- Aliens under the NACARA law program;
- Workers without university studies who know any trade. For example, nannies, domestic workers, plumbers, gardeners, cooks, among others;
- Aliens with an approved work visa;
- Aliens under Temporary Protected Status (TPS).
Don’t know what TPS is in the United States? You may be able to qualify for this immigration program. By checking our blog, you will find the necessary requirements to be eligible.
How Much Does A PERM Labor Certification Cost In 2022?
The Department of Labor does not charge a fee for the PERM petition. However, there are other costs related to this process. For example, USCIS sets a fee of $700 for the filing of the alien worker petition.
Other common costs for this certification are:
- Approximately $1,225 for filing Form I-485;
- $2,500 if the premium processing request is filed with USCIS. Such request is optional.
The good news for aliens is that both the cost of filing the application and the other associated costs must be paid by the US employer or company and not by the foreign national worker.
How Long Does It Take To Obtain A PERM Labor Certification?
Generally, PERM labor certification acceptance and processing can take anywhere from 6 to 18 months, depending on the workload and resources available in each DOL region.
It should be noted that:
- The immigration visa petition to USCIS through form I-140, can take from 4 to 12 months, depending on the category of visa preference petition and geographic location;
- The adjustment of status presented at one of the USCIS Regional Service Centers usually takes 8 to 36 months.
The PERM labor certification to obtain the Green Card for work is a complex and time-consuming process. If you want more information on this topic, you can come to our offices located in downtown Los Angeles, call us or send us an email.
How Long Does It Take To Get A Labor Certification Approved?
Currently, DOL takes a minimum of 30 days to make a final decision on a labor certification. However, there are no standardized time frames, so the waiting time for approval can extend beyond 30 days.
Note: An approved permanent labor certification is not evidence that the DOL has determined that the alien named on the labor certification qualifies for the job. Only USCIS has the authority to determine whether or not the alien qualifies.
Can I Travel While PERM Is Pending?
The application for the labor certificate does not affect the beneficiary’s ability to travel outside the United States. The only caveat is that you must again obtain a visa for re-entry into the country. It is also advisable to notify your immigration attorney so that he can take the necessary steps.
Can The Labor Certification Be Denied?
Just as the DOL can approve a PERM labor certification, it can also deny it. Commonly, the reasons DOL denies PERM include:
- Failure to comply with the deadlines for publication of the job offer;
- Hidden information regarding family relationships between the employer and the sponsored alien worker;
- Ineligibility by the foreign national worker;
- Failure to comply with the requested collections.
What Happens After PERM Approval?
After the labor certification is approved, the employers must go to USCIS. There they file Form I-140 and the alien worker petition process is formally initiated.
- If the worker is already in the United States legally, they must wait for a visa to be available for their category;
- If there is not one yet, they cannot apply for adjustment of status to obtain a Green Card;
- When the worker resides abroad and an immigrant visa is available, consular processing begins. In this way, the visa is obtained to legally enter the United States.
- When the adjustment of status is approved and the alien enters the US, the Green Card is immediately activated. If there is no visa available, you will still have to wait then.
PERM Labor Certification FAQs
It is possible to stay in the US after PERM approval. However, you must wait for a visa category to become available to apply for adjustment of status. Only then can you obtain permanent residence.
There are cases in which this can happen, since the approval of the PERM certification does not guarantee obtaining the Green Card. Sometimes, depending on the reason for the ineligibility, the alien worker can go through this procedure again.
However, there are others where it is not, so you will need to consult with our experienced immigration attorney.
Generally, it is not possible to change jobs once the DOL has approved the PERM labor certification. This is because certification is only granted for a particular type of employment and employer.
Contact Our PERM Labor Certification Lawyers In Los Angeles
The immigration attorneys at Lluis Law in Los Angeles are well-known by the community to have over 50 years of combined experience in this labor certification process in the United States.
There are several considerations and nuances to take into account that go beyond this explanation. Each immigration process is a world, so to know precisely where you are, call us today so we can examine your case.
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