Law Offices of Jing Tan

PERM Labor Certification

Overview

PERM stands for "Program Electronic Review Management", and it is an entirely new procedure for Labor Certification Application.  "Labor certification" is the most widely used employment-based opportunity for obtaining a green card.  Labor certification requires a U.S. employer to prove that there are no minimally qualified U.S. workers for the position.  Once the U.S. Department of Labor "certifies" this application, the employer will be able to apply to the U.S. Citizenship and Immigration Services (CIS) for permanent residency (a "green card") for the foreign employee.

Applications filed before March 28, 2005, will be processed either under "standard" procedures or under "Reduction in Recruitment" or "RIR." Applications filed on or after March 28, 2005, will be processed under a completely new program ("PERM"), and, traditional Labor Certification or RIR processing will NO longer be available for new filings.

The main distinction between PERM and the previous Labor Certification process is that under PERM no supporting documents are submitted at the time of filing. However, the petitioning employer is required to have all supporting documents ready prior filing and should submit to DOL within 30 days if the case is chosen by DOL for auditing.

PERM Labor Certification is an extremely complicated procedure. We recommend that you consult with an experienced immigration attorney.

Who needs a PERM Labor Certification?

Generally, PERM Labor Certification is the first step in filing most employment-based petitions under EB-2 and EB-3. This includes immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2) and petitions for professionals with bachelor’s degrees, skilled workers with two years or more experience, and unskilled workers (EB-3).  Only the National Interest Waiver (NIW) category under EB-2 is exempt from the requirement of a PERM Labor Certification.  

Qualifying criteria

To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.

a.      The employer must be prepared to hire the foreign worker on a full-time and permanent basis.

b.      There must be a bona fide job opening available to U.S. workers.

c.      Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.

d.      The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

1. Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089).  In the application, the employer must outline the recruitment undertaken as well as describe, in detail, the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work.  In addition, the  foreign worker’s relevant education and work experience, if any, must be provided.
2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the National Processing Center (NPC). Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
3. Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
4. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
   
   The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation.  For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2) Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
   
   The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
5. Audits/requests for information: Supporting documentation need not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
6. Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination documentation is not submitted with the application, but must be retained for a period of five years from the date of filing the application by the employer.
7. Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
   
   Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:

§             Save time by pre-populating your general information.

§             View the status of your labor certification applications online.

§             Update your profile information online.

§             Track newly submitted labor certification applications.

§             Email saved labor certification applications to others within the company.

§             Add new users to your account.

§             Withdraw labor certification applications no longer needed.

8. Approvals. If the National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application.

Prevailing Wage Requirements

Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the State Workforce Agency ("SWA") having jurisdiction over the proposed area of intended employment. The U.S. employer is then required to include the following prevailing wage information on the ETA Form 9089:

1. The prevailing wage;
2. The prevailing wage tracking number (if applicable);
3. The SOC/O*NET (OES) code;
4. The occupation title;
5. The skill level;
6. The wage source;
7. The determination date; and
8. The expiration date.

The proposed wage for the alien must at least be equal to this prevailing wage.

PERM Labor Certification is an extremely complicated procedure. We recommend that you consult with an experienced immigration attorney.