PERM Labor Certification

The U.S. Department of Labor does not make it easy for foreign nationals to get a green card through their employers. A key requirement in the process is that the employer must secure a permanent labor certification, otherwise known as a PERM. Here are the details:

What is a labor certification (PERM)?

A permanent labor certification (“PERM”) is a form that an employer must obtain from the U.S. Department of Labor (DOL) before petitioning for a foreign worker for permanent residency (“green card”). For most employment-based immigrant visa petitions, the U.S. employer must demonstrate through the PERM labor certification process that there are not sufficient U.S. workers able, willing, qualified, and available to accept the position offered to the foreign worker and that the employment will not adversely affect the wages and working conditions of similarly-employed U.S. workers. A labor certification is only required if the U.S. employer wishes to hire a foreign worker on a permanent basis for a green card, and is not necessary if the employment is for temporary, non-immigrant visas such as H-1B, L-1, O-1, or TN.

How do I apply for a labor certification?

The employer will start by analyzing the job position offered to the foreign worker and its requirements. The employer then obtains a prevailing wage determination from the U.S. DOL to establish the wage normally offered for the position in the specific geographic location of the employment. Once a prevailing wage is established, the employer will have to go through several steps of the recruitment process, such as advertising with a State Workforce Agency and placing advertisements in a newspaper of general circulation. Additional recruitments might be required if the job offer is for a professional position. The employer must also provide a notice of filing to inform other employees at the company that a labor certification is being filed. After all the recruitment steps are completed, the employer must wait for at least 30 days before submitting the labor certification electronically. Based on the nature of the job and its requirements, the U.S. DOL may select an application for an audit before making its final decision. Audit notices can also be issued by random selection. PERM audits are also mostly done electronically, and the employer will need to submit evidence of its recruitment efforts along with other documents that the U.S. DOL might require. The entire PERM application process from start to finish typically takes more than a year, especially if it is selected for a DOL audit, so it is important that the employer plans ahead and starts the PERM process well in advance.

Is there a fee to file a labor certification?

There is no filing fee to pay to the DOL for a PERM application. However, the regulation provides that all other costs involved in preparing the labor certification must be borne by the employer, including legal fees and advertisements.

What happens after the labor certification is approved?

Once the U.S. DOL certifies the PERM application, the employer can now submit a Form I-140 immigrant visa petition to the USCIS. This petition must be filed before the expiration date of the approved PERM. A PERM labor certification will have a validity period of 180 days from the date of approval, so the Form I-140 must be filed within this period with the original labor certification attached. Depending on the foreign employee’s visa status in the U.S. and other circumstances, it is possible to also file for a Form I-485 adjustment of status of the foreign employee and his/her dependents at the same time of submitting the I-140 petition. The employee and his/her dependents will likely have to appear for an interview at a local USCIS office before the adjustment of status is approved. After approval of the adjustment of status, a permanent residency card will be issued.

What is the “Schedule A Occupations” exception?

For certain occupations, the U.S. DOL has already categorically determined that there are not sufficient U.S. workers who are able, willing, qualified, and available, and therefore hiring a foreign worker in those positions will not adversely affect the wages and working conditions of U.S. workers similarly-employed. Schedule A occupations are divided into two groups:

Group I

• Physical Therapists: You must possess all the qualifications necessary to take the physical therapist licensing examination in your state of employment.
• Professional Nurses: You must (i) have a CGFNS Certificate, (ii) have passed the NCLEX-RN) exam, or (iii) hold a full and unrestricted license to practice nursing in your state of employment.

Group II

• Aliens of exceptional ability in the sciences or arts (except performing arts), including college and university teachers, of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the U.S.
• Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

If you qualify for a Schedule A Occupation, your employer can apply for a labor certification by filing the I-140 form directly to USCIS, without going through the normal PERM process with the U.S. DOL first. The employer does not have to conduct any recruitment but must still get a prevailing wage determination and post a notice to other employees that a labor certification for a Schedule A Occupation is being filed. Because the recruitment process and an approval from the U.S. DOL are not required, the processing time of applying for permanent residency under Schedule A is greatly reduced.