What is PERM Labor Certification? An Overview for U.S. Employers and Foreign Worker

The PERM (Program Electronic Review Management) Labor Certification is a critical step in the U.S. employment-based immigration process. It is the process through which a U.S. employer demonstrates to the U.S. Department of Labor (DOL) that there are no qualified U.S. workers available to fill a particular position, and that hiring a foreign worker will not negatively impact the wages and working conditions of U.S. workers. The PERM process is typically the first step for employers seeking to sponsor foreign workers for an employment-based Green Card under the EB-2 or EB-3 visa categories.

Who Requires PERM Labor Certification?

PERM Labor Certification is required for most employment-based Green Card applications under the EB-2 (professionals with advanced degrees or exceptional ability) and EB-3 (skilled workers, professionals, and other workers) visa categories. The employer must obtain this certification before the foreign worker can apply for a Green Card.

Exemptions: Certain categories, such as EB-1 (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), EB-2 National Interest Waiver (NIW), and specific religious workers under EB-4, are exempt from the PERM process.

Steps Involved in the PERM Labor Certification Process

1. Job Description and Requirements:
   • The employer must create a detailed job description, including the duties, requirements, and qualifications necessary for the position. The requirements should reflect the minimum necessary skills and experience needed for the job and should not be tailored to the foreign worker’s specific qualifications.
2. Prevailing Wage Determination:
   • The employer must obtain a prevailing wage determination from the DOL. The prevailing wage is the average wage paid to similarly employed workers in the geographic area of employment. The employer must agree to pay the foreign worker at least the prevailing wage for the position.
3. Recruitment Process:
   • The employer must conduct a good-faith recruitment process to test the U.S. labor market. This includes:
     • Posting the job order with the State Workforce Agency (SWA) in the area of intended employment.
     • Placing two print advertisements in a widely circulated newspaper.
     • Posting a notice of the job opportunity at the worksite.
     • Additional recruitment steps may be required, such as online job postings, job fairs, or trade organization ads.
4. Filing the ETA Form 9089:
   • If no qualified U.S. workers are found during the recruitment process, the employer can file ETA Form 9089 with the DOL. This form outlines the job requirements, recruitment efforts, and the qualifications of the foreign worker. The DOL will review the application to ensure all requirements have been met.
5. Approval and Next Steps:
   • If the DOL approves the PERM application, the employer can then file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS) to continue the process of obtaining the Green Card for the foreign worker.

Benefits of the PERM Labor Certification Process

• Employment-Based Green Card Pathway: The PERM process is a crucial step for foreign workers seeking to obtain a Green Card through employment in the U.S.
• Protects U.S. Workers: The rigorous recruitment process ensures that U.S. workers are given the first opportunity to fill jobs before employers can hire foreign workers.
• Legal Compliance: Successfully navigating the PERM process ensures that employers comply with U.S. labor laws and regulations, avoiding potential fines and penalties.

Challenges and Considerations

• Time-Consuming Process: The PERM process can be lengthy, often taking several months to complete, depending on the DOL’s processing times and the employer’s recruitment efforts.
• Strict Requirements: Employers must adhere to strict guidelines in job descriptions, recruitment efforts, and prevailing wage determinations to avoid denials or audits.
• No Guarantee of Approval: Even after fulfilling all requirements, there is no guarantee that the DOL will approve the PERM application. Employers must be prepared to address any issues that arise during the process.

Conclusion

The PERM Labor Certification is an essential part of the U.S. employment-based immigration process, providing a pathway for foreign workers to obtain a Green Card through employment. It requires careful planning, compliance with regulations, and a thorough understanding of the recruitment and filing process. Employers seeking to sponsor foreign workers should consult with an experienced immigration attorney to navigate the complexities of the PERM process successfully.

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Citations

• PERM Labor Certification

If you have questions regarding the PERM Labor Certification, we invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.

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