Immigration based on PERM Labor Certification (EB-2/EB-3)
Portions of the content on this page are available as public information on the USCIS website.
Description of the Process (INA 212(a)(5)(A) & (p))
A U.S. employer can sponsor a foreign national for permanent resident status in the United States through the PERM (Program Electronic Review Management) Labor Certification process. The PERM Labor Certification process includes three stages. The first stage requires the employer to test the U.S. labor market to determine if a qualified U.S. worker is available to fill the position offered to the foreign national. The process requires the employer to follow specific requirements for advertising the position to determine if a qualified U.S. worker is available. If a qualified U.S. worker cannot be found, the employer can proceed with submitting the PERM Labor Certification application on behalf of the foreign national to the U.S. Department of Labor. In the application, the employer details the terms and conditions of employment being offered to the foreign national, the recruitment efforts, the results of recruitment, as well as biographical information about the foreign national employee being sponsored. Once the PERM Labor Certification has been certified, the employer can proceed to the second stage and sponsor the foreign national for permanent resident status by filing an Immigrant Petition on behalf of the foreign national with USCIS.
If the foreign national is inside the United States, they are able to file an application to change their nonimmigrant status to permanent resident status when they become eligible for an immigrant visa (based on their country of birth and the specific immigration category).
If the foreign national is outside of the United States, they can proceed with Immigrant Visa processing through a U.S. Embassy or Consulate abroad. The foreign national can enter the United States as a Lawful Permanent Resident (LPR) upon approval of their immigrant visa.
Dependents of the sponsored foreign national (spouse and unmarried children under the age of 21) are also eligible to apply for permanent resident status.
EB-2 vs. EB-3
The employment-based preference categories that require the PERM Labor Certification application are EB-2 (other than a National Interest Waiver) and EB-3.
In the context of the PERM Labor Certification, an EB-2 petition is an employment-based 2nd preference petition for a foreign national professional worker with an advanced degree or its equivalent (master’s degree or higher). A professional with a bachelor’s degree and five years of progressively responsible experience in the job being offered may be considered to possess the equivalent of a master’s degree in the field.
An EB-3 petition is an employment-based 3rd preference petition for a foreign national employee who has a bachelor’s degree, or, if not possessing a degree, is a skilled worker, meaning the foreign national has at least two years of work experience qualifying them for the job being offered.
Additionally, there is a sub-category for unskilled workers that requires less than two years of experience.
- Skilled Workers: An alien must be able to demonstrate at least 2 years of job experience or training and must be performing work for which qualified workers are not available in the United States.
- Professionals: An alien must be able to demonstrate that an alien possesses a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation and must be performing work for which qualified workers are not available in the United States.
- Unskilled Workers (Other Workers): An alien must be capable, at the time the petition is filed on his or her behalf, of performing unskilled labor (requiring less than 2 years of training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
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