A labor certification or PERM, as it is commonly called, is the first step most employers take to sponsor their employees for permanent residency. There are three steps to a green card or permanent residency through the PERM process. The first step is to obtain an approved PERM or labor certification. Second, you must file for an immigrant visa successfully. The last step is to file an adjustment of status which will grant the employee permanent resident status.
There are several different types of employment-based sponsorships but PERMs are the most common. PERM labor certifications can fall under either employment-based categories of EB-2 or EB-3. The EB-2 category is designated for advanced degree workers – normally those who hold Master’s degrees or Bachelor’s degrees plus 5 years of progressive work experience. The EB-3 category is designated for most other workers, including professional workers (those with bachelor’s degrees) and skilled workers (those with 2 years or more of work experience).
The government agency responsible for overseeing the PERM process is the U.S. Department of Labor (DOL). The DOL’s goal is to ensure that U.S. workers are protected and preferred over foreign nationals. The PERM labor certification is a complex process that involves several recruitment steps. The goal of the process is to demonstrate to the DOL that there are no able, willing and qualified U.S. workers who will fill the position being offered to the foreign national. The employer must open the position to U.S. workers through specific advertising required by the regulations and they must make a bona fide attempt to recruit U.S. workers for the job. Only should there be no qualified U.S. workers found, can the PERM be filed and approved (certified). The PERM process consists of the following steps:
- Request a prevailing wage determination from the DOL.
- Place a job order with the State DOL for a minimum of 30 days.
- Place 2 Sundays newspaper ads in an appropriate newspaper, which is generally the largest circulation newspaper over the metropolitan area of employment.
- Place 3 additional advertisements—these ads can be any 3 out of 6 options. including: radio ads, local/ethnics newspaper ads, website ads, TV ads, etc.
- List a job posting in the employer’s work location for 10 business days.
Each of the ads that are placed must include very specific information that is listed in the DOL regulations in order to qualify as an ‘appropriate’ advertisement. Both the wording of the ads and the venue where they are placed are very important factors in determining success with the PERM process.
Once the advertisement is completed, the employer must wait an additional 30 days in order to see if any resumes are received. At the end of those 30 days, if there are no able, willing and qualified U.S. workers to fill the position, the employer may submit the PERM application (normally electronically) to the DOL. If there are U.S. workers that are minimally qualified based on the requirements, the company either cannot go forward with the PERM process or will have to offer the position to the U.S. candidate first.
After the DOL reviews the case, it can certify (approve) the case, deny the case, or audit the case. Audits can be random or triggered by specific triggers in the labor certifications, such as the requirement of a foreign language skill. In these cases, the employer must prove to the DOL the business necessity of the requirements that were listed in the ads. If the case is certified, the employer can immediately file an I-140 immigrant visa for their employee.
Depending on the category of the application (EB-2 vs. EB-3) and also the nationality of the employee, the employee may or may not be able to file for a green card (I-485 adjustment of status application) at the same time as the I-140. Most foreign nationals who fall under the EB-2 category (except for Indian and Chinese nationalities) can file the I-485 concurrently with the I-140 immigrant visa. Indian and Chinese EB-2 applicants and all EB-3 applicants must wait several years in order to file for the green card because there are annual limits on the number of employment-based green cards.
There are a couple of important things to be aware of about the PERM process:
- The PERM process does not give any legal status to the foreign national. It is not a visa and does not give authorization to stay or work in the U.S.. Therefore, while the labor certification is being processed, the foreign national must have some other legal status to be able to legally remain and work in the U.S., such as an H-1B visa.
- The PERM process must be paid for entirely by the employer, including all advertising costs and attorney’s fees (with very few exceptions). The employer cannot be reimbursed or paid back by the employee for these costs.
The PERM process allows an H-1B visa holder to get extensions beyond the initial 6-year limit if the PERM was filed at least 1 year prior to the maximum 6 year time limit being reached.
College or university professors who teach in post-secondary institutions, qualify for a different type of PERM process called Special Handling PERM.
The PERM process is very complicated and its regulations tightly enforced. If you are interested in applying for PERM for yourself or for your employee, call our office today to speak with an experienced employment immigration attorney. We’ll determine the best strategy to get you positive results and guide you through common issues that can lead to delays and denials.