The PERM labor certification process is one of the benefits offered by the United States immigration system. It represents a basic requirement for companies that wish to sponsor foreigners to obtain the Green Card.
If you are looking for advice on any visa matter, the immigration attorneys at Lluis Law in Los Angeles can help you. We are experts in all kinds of visa procedures for the USA. based on employment , business and investment, and family based immigration petitions for American residency.
The labor certification is used to sponsor a foreign worker belonging to the EB-2 and EB-3 visa categories. It is a different process than the Labor Condition Application (LCA), to obtain temporary work visas H-1B and E-3. Although it is also processed in the Department of Labor.
In this article we will explain everything about PERM. If you want to process an application for permanent labor certification, do not hesitate to call us, we will gladly offer you a free consultation.
What is the PERM labor certification?
The acronym PERM stands for Program Electronic Review Management. It is the system used to obtain permanent Labor Certification in the United States. Additionally, it is the first step in obtaining an employment-based immigrant visa or green card.
The PERM labor certification came into effect on March 28, 2005 in the USA Its purpose was to regularize and expedite applications for work permits for foreign workers. Previously, this same process took years and its approval was subject to subjective criteria of the immigration official.
This labor certification has a dual purpose:
- Demonstrate to the Immigration and Citizenship Services (USCIS) that there are not enough “capable, willing, qualified and available” workers. In the work area offered by the employer.
- Protect American workers from any displacement when employing a foreign worker. Neither does it affect workers with work authorization (non-citizens) in their working or salary conditions. Including permanent residents, asylees and refugees.
Labor certification should not be confused with work permits (Employment Authorization Document – EAD). Such permits are granted to people who apply for asylum and wait for a response from the government.
The Department of Labor has a list of occupations with insufficient demand for work in the United States. (Exhibit A) set forth at 20 CFR 656.15, meaning there are not enough US workers so foreign workers can apply.
Annex A further establishes that the hiring of foreigners in said occupations does not affect their salary level. Neither do the working conditions of American workers in similar employment.
How do I get my PERM labor certification?
Obtaining a PERM Labor Certification for Foreigners requires four steps or conditions:
- Make sure you meet the qualification requirements for the employment visa.
- A sponsoring employer willing to carry out the labor certification process.
- Apply to the United States Department of Labor (DOL) for the labor certificate. Then, obtain the permanent labor certification, issued by the Employment and Training Administration of the Department of Labor.
- With the PERM approved, an employment-based petition is filed with USCIS.
Finally, if the worker is abroad, it is required to request the approval of an immigrant visa. This procedure is carried out through the so-called consular process at an embassy or consulate.
Processing of labor certification by the employer
The employer requesting a labor certification must pay the worker the average salary for the type of work required. At the prevailing wage rate determined by the US Department of Labor. In addition, the foreign worker must be hired as a full-time employee.
On the other hand, you will need to place ads to inform qualified American workers of the required work. Likewise, indicate to DOL that you make your best efforts to serve each job applicant who responded to the announcement.
If job applicants do not respond to emails or phone calls, they should find another way. For example, sending a letter using certified mail. On the other hand, citizens looking for a job cannot be disqualified solely for their resume.
Candidates for the offered job position must be evaluated through an additional job interview. Any reason to disqualify a US job applicant must be legal and approved by DOL.
The Department of Labor requires employers to keep on file all evidence related to their recruitment efforts. Such information must be kept for 5 years after the application is submitted.
The usual requirements for different types of jobs are specified in the database maintained by DOL. When such employer requirements exceed the normal DOL standard, it must provide a well-argued explanation.
Where to post the job offer for American workers?
In order to fully comply with the guidelines of the Ministry of Labor, employment notices can be published at:
- Employer website.
- Job fairs.
- Websites dedicated to the search and placement of workers (Indeed.com, monster.com and others).
- Local newspapers.
- Television / Radio.
- Public and private placement offices and other employment sponsoring organizations.
It is recommended to keep a file of payment receipts, correspondence and any other documents related to the recruitment process. In the event of an audit this will avoid fines and other penalties.
Documentation required for PERM labor certification
The procedures and documents that the employer must have on hand are:
- Diagnosis of the local labor market with evidence of lack of trained personnel and / or eligible for employment.
- Approved documented evidence related to:
- Request for prevailing or minimum salary. DOL determines the prevailing salary based on location and job requirements.
- Work orders.
- Notices posted in the media and in employment organizations.
- Job advertisements placed on the company’s website.
- United States Employer Audit File.
- Immigrant petition.
- ETA Form 9089 completed.
Criteria to pass the labor certification
To obtain labor certification, the employer must pass the labor market test. In other words, confirm that there are no workers in the United States qualified for the required job. Only then, the employer may submit the application for labor certification to the Department of Labor.
Subsequently, the Labor Department verifies that the employer has complied with each of the process rules. Among these, there are no disadvantaged skilled US workers linked to the process of hiring a foreign worker.
With this legal step resolved, DOL approves the certification for the foreign worker. This document can be used by the employer to file Form I-140 Petition for Foreign Immigrant Worker with USCIS.
In short, to pass a PERM certification, DOL takes into account three basic elements:
- Compliance with all regulations by the company;
- Absence in the United States of a worker who wants the job, is trained for the job or willing to do it.
- That the hiring of the foreign worker does not affect the salary or working conditions of US citizen workers.
DOL carefully considers whether the worker’s sponsor is a relative of the beneficiary or not. If the application for labor certification is found to be a fraud, then the request will be denied.
This is a good faith process in which the administration trusts the petitioner’s word. However, it can be denied when the officer in charge observes any irregularity or violation of the approval criteria.
How long does it take to get a PERM labor certification?
The process to obtain labor certification has the following time periods:
- Labor certification (filed with the Department of Labor) from 6 to 18 months. Processing varies depending on the workload and resources available in each Department of Labor region.
- Petition for Immigration Visa to USCIS through form I-140. From 4 to 12 months, depending on the category of visa preference request and geographic location.
- Adjustment of status filed at one of the USCIS Regional Service Centers. 8 to 36 months, depending on priority dates and immigration center workload or resources.
PERM labor certification to obtain a green card for work is a complex and slow process. If you want more information on this subject, you can come to our offices located in downtown Los Angeles. If you prefer, you can also speak to one of the expert immigration attorneys and book a free consultation.
PERM for EB-2 and EB-3 visa categories
Labor certification is necessary for procedures related to Green Card sponsorship under categories EB-2 and EB-3.
EB-2 category visas
It is the second preference in the employment visa category. Professionals with master’s degrees or higher education qualify for this visa category as well as “people with exceptional abilities in Business, Arts and Sciences.” Every year 40,000 visas are issued for this category.
EB-3 category visas (third preference) and other workers
This category includes:
- Professionals with a degree.
- People without higher education but special professional skills and a minimum 2-year work experience.
- People without special skills whose job requires at least 2 years of work experience.
The only exceptions to the PERM arise when it is argued that the labor certification must be granted abroad by:
- National Interest (NIW).
- Outstanding university professors and / or researchers.
- Extraordinary ability.
If you have any questions regarding the PERM labor certification application, you should seek legal advice. This is a delicate matter that requires technical and legal knowledge in the immigration area. Call any of our immigration attorneys right now and book a Free Consultation.
What happens after PERM approval?
After the labor certification is approved, the employer must go to the Immigration and Citizenship Service (USCIS). There he submits the I-140 form and the foreign worker petition process is formally started. The deadline to submit this request is 180 days.
If the worker is already legally in the United States, they should expect a visa to be available for their category. If there is noe yet, you cannot apply for adjustment of status to obtain the Green Card. Instead, if you don’t have to wait, you can then simultaneously apply for adjustment of status through Form I-145.
When the worker lives abroad and an immigrant visa is available, the consular process begins. In this way, the visa to legally enter the United States is obtained. When the adjustment of status is approved and the immigrant enters the US, the Green Card is immediately activated. If there is no visa available, you still have to wait then.
Can I stay in the USA after PERM approval?
Of course, you must wait until your visa category is available to file the adjustment of status application. Only then can you obtain permanent residence.
What do I do if PERM is approved but they reject the Green card?
There are cases in which this can occur, since the approval of the PERM certification does not guarantee you obtain of the green card. Sometimes, depending on the reason for ineligibility, the foreign worker can carry out this procedure again.
However, there are cases where you can’t, so you should consult with an experienced immigration lawyer.
Can I change job after PERM approval?
It is not possible in most cases. Although the law provides a way to switch jobs while developing the PERM labor certification process. If the employer allows it, after agreeing to work for another company, then the job change does proceed.
The former employer must withdraw the PERM application and the new employer initiate a new application process.
Can I travel while PERM is pending?
The job certificate application does not affect the beneficiary’s ability to travel outside of the United States. The only caveat is that you must obtain a visa to re-enter the country again. It is also advisable to notify your immigration attorney to take the necessary steps.
What is labor certification in the USA?
Labor certification represents a great opportunity to obtain Legal Permanent Residence. In addition to PERM, there are other employment-based immigrant visa alternatives for foreigners.
For example, the EB-1A visa for Foreigners with Extraordinary Ability (EB-1A), and the EB-1B visa, Outstanding Professors or Researchers. Also the EB-1C, Multinational Executives or Managers and the National Interest Exemption (NIW), among others.
Benefits of a labor certification
The PERM labor certification allows foreigners to work and live legally in the United States indefinitely. In addition to representing a fast and safe way to obtain permanent residence, it allows:
- Enjoy social and labor security. The worker cannot be deported or discriminated against at work. Unless you commit a crime that affects your immigration status.
- The worker receives a salary similar to any other American worker in the workplace where he is employed. It cannot be underpaid.
- You get the same job benefits that US citizens are entitled to.
- It allows obtaining the Green Card and then opting for naturalization for the worker and his immediate relatives.
How long does it take for a labor certification to be approved?
Although there is no clearly defined time frame, the response can currently last from 60 to 90 days or more. Before the automated system was implemented, the process took years. Now the time for the Department of Labor to respond has been reduced, although still somewhat delayed.
How much does a labor certification cost?
There is no set fee to file the PERM labor certification petition from the Department of Labor. However, costs related to the recruitment process must be taken into account. For example, the placement of advertisements and other associated procedures.
In addition to hiring an immigration attorney to guide you through the process and prevent you from making mistakes. On the other hand, USCIS charges a filing fee of $ 700 for the I-140 foreign worker petition. These costs are borne by the employer, not the worker.
Regarding the costs for applying for adjustment of status, these vary according to the age of the applicant.
If you need more information on this or any other immigration issue, visit our offices. To book a Free Consultation right now, call our phones and we will be happy to assist you. Lluis Law immigration attorneys are here to help you resolve any legal matter related to immigration.