PERM Labor Certification
In 2005, the Department of Labor created the Program Electronic Review Management (PERM) system for labor certification. PERM was established to ensure that U.S. companies do not hire foreign workers unless there are no qualified U.S. citizens available to do the job.
Receiving PERM certification is the first step for many people applying for permanent residency based on employment. Below we’ll provide you with answers to key PERM certification questions and explain when you may need to hire a labor certification attorney.
What is PERM Labor Certification?
Although PERM labor certification is often referred to as a “PERM visa,” it is not a visa in and of itself. Instead, it is the first step in applying for an employment-based permanent residency green card. Once the PERM labor certification is approved, an employer can petition for a green card on behalf of the employee.
The PERM application is extensive and requires the employer to provide proof that a qualified U.S. worker could not be found to fill the position. Until PERM labor certification has been approved, an employer cannot petition for an employee’s green card.
Who Needs PERM Labor Certification?
Anyone applying for permanent resident status in the EB-2 or EB-3 categories requires a PERM labor certification, except EB-2 National Interest Waiver applicants who demonstrate that their work is in the national interest of the U.S.
In addition to this exception, PERM labor certification is NOT required for the following:
- Family-based immigration petitions
- EB-4 petitions (for Special Immigrants such as religious workers)
- EB-5 applicants (for foreign entrepreneurs and investors).
- EB-1 applicants
- Applicants to Schedule A occupations
Schedule A occupations are those which the Department of Labor has determined as not having sufficient U.S. workers available to fill. These occupations include physical therapists, professional nurses, and scientists, artists, and performing artists.
Employee PERM Certification Requirements
To qualify for the PERM labor certification process, an employee must have been offered a permanent job by a U.S. employer that will petition for their visa. They must also be offered a wage that is equivalent to or exceeds the Department of Labor’s (DOL) prevailing wage for their specific position.
The DOL defines the PERM prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.”
Prevailing wages for different positions can be found in the DOL’s Online Wage Library. While the wages listed here are used as guidelines, geographic location, employee skills, education, and experience, and how much supervision is required in the position are also considered in determining prevailing wages.
Employer PERM Certification Requirements
For a PERM labor certification to be approved, the sponsoring employer must provide evidence of what is known as “business necessity.”
In other words, they must demonstrate that the job requirements for the position are not only essential to their business but will also be necessary for the employee to perform their job duties.
In addition, they must conduct a test of the labor market to demonstrate that there is no qualified U.S. worker who is able and willing to take the position.
What is the PERM Application Process?
The PERM application process is complex, to say the least. The application is completed by the employer, who must begin by documenting their efforts to test the existing U.S. labor market and submit a Labor Certification application (form ETA 9089) to the DOL.
The DOL will then verify that the employer did not find a U.S. worker to fill the existing position and its requirements.
Also, the employer must provide evidence that by employing a foreign applicant, they will in no way negatively impact U.S. workers in related fields. The DOL verification process can take up to 180 days to complete.
Once PERM certification is approved, the U.S. employer can file an immigrant petition, but they must do so before the labor certification expires; otherwise, the case will be abandoned. Once approved, the PERM certification is valid for 180 days.
After an applicant’s I-140 petition is approved, they must wait until their visa number becomes available, which depends on the type of employment-based green card they are applying for. This could take anywhere from a few months to 20 years, depending on the visa type and the country of birth of the applicant.
Advertising and Recruiting Requirements for PERM Certification
PERM regulations require employers to engage in employee recruitment efforts within six months of filing an application.
For professional positions, which typically require the employee to have a bachelor’s degree or a foreign equivalent or higher, the employer must place a job order with the state workforce agency for 30 days.
Also, they must place an ad in the Sunday issue of the newspaper of general circulation in the location of the job for two weeks in a row. If preferred, one of these ads can instead be placed in a professional journal.
Employers hiring for non-professional positions that do not require a college degree only need to complete the two recruitment steps above.
Professional Recruiting Requirements
Employers hiring for professional positions, however, must demonstrate additional recruitment efforts by advertising the position via three of the following:
- Job fairs
- Employer website
- Recruiting on college campuses
- Recruiting via professional or trade organizations
- Utilizing a private employment firm for recruiting
- Using an incentive-based employee referral program
- Utilizing campus placement offices
- Advertising in local newspapers, or on radio or television
- Utilizing job search sites (for example, monster.com)
Additionally, employers must provide documentation that they have participated in these recruiting efforts. Regardless of whether they are recruiting for a professional or a non-professional position, the employer cannot file ETA 9089 until 30 days after the recruitment period ends to ensure applicants have time to apply for the position.
What Happens During Labor Certification Application Denials
There are a variety of reasons why PERM certifications may be denied, including many common mistakes made by employers.
For example, if an employer submits ETA Form 9089 with errors, the application may be denied. All too often, employers mistakenly provide information on the 9089 form that is different from the information they supplied in a Job Order, Notice of Filing, or job ads, which can result in serious consequences for the application.
One small mistake, such as running a job ad in two different publications where one states that the job requires a bachelor’s degree while the other states that a master’s degree is required, could cause the application to be denied.
Even failing to meet the requirement of running a newspaper job ad on two consecutive Sundays could jeopardize your application. Working with an attorney is one of the best ways to ensure your application meets all requirements.
Employers must also remember to include all of the beneficiary’s work experience in the application, including previous position titles, skills, and dates of employment, and name and contact information for the previous employer.
It is also imperative for employers to complete the questionnaire the DOL sends after the employer has submitted form ETA 9089. If the questionnaire is not submitted within seven days of receipt, the PERM certification will be denied. Unfortunately, many employers fail to respond, which results in a much longer process than anticipated.
As an employer, it is also essential to keep duplicate copies of all forms submitted in the application, as well as any correspondence with the DOL. If the DOL requests additional information or misplaces a document, and you do not have a copy, your application could suffer.
What to Do If a Labor Certification Application is Denied?
PERM denials, while incredibly frustrating and inconvenient, may be appealed, and it is still possible that the application will eventually be approved. If your application is denied, the best course of action is to work with a qualified labor certification attorney who is familiar with these types of cases. A PERM immigration attorney is the best source of knowledge available to you if your application is turned down.
Two Types of Appeals
Motion to Reconsider
In the case of a denial, two types of appeals can be made. The first, known as a Motion to Reconsider (MTR), is made directly to a Department of Labor Certifying Officer. This type of appeal is reserved for cases where the employer believes an administrative error, such as incorrect data entry or failure to acknowledge a submitted document, has occurred.
If there is evidence the employer could not submit with the original application, an MTR is a strong course of action. MTRs can be filed with either the processing center where the decision was made or with the Board of Alien Labor Certification Appeals (BALCA). The MTR must be filed within 30 days of the denial.
Request for Review
The second type of appeal is called a Request for Review. During this process, BALCA will review the certifying officer’s decision. Because the final decision will be determined in light of previous case law and regulations, it is essential to work with an experienced immigration attorney during the process.
It is also important to remember whenever an appeal is taken up with BALCA, the timeline can be lengthy, often up to four years. It is necessary to consider whether or not an appeal is in your best interest.
Once BALCA begins your case review, the employer cannot submit additional evidence. In some cases, this means that re-filling, rather than appealing your application, could be a better option.
Hiring a Labor Certification Attorney
Because the application and appeals process is incredibly complicated, the best way to ensure that it goes smoothly is by working with a qualified immigration attorney.
The skilled immigration team at David Hirson & Partners, LLP, can ensure all application materials are in order and that you meet critical deadlines. For the highest likelihood of approval, or for help with a PERM denial, contact us at 949-383-5358.