PERM

Program Electronic Review Management

Putting the pieces togetherMost employment-based immigration petitions must start with a permanent labor certification, issue by the Department of Labor (DOL). PERM is short for (Program Electronic Review Management), is the system used for obtaining labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (“green card”). This is also known as PERM labor certification. The employment-based preference categories that require PERM labor certification are EB-2 (other than a National Interest Waiver) and EB-3. Before a U.S. employer can file an immigration petition for a foreign worker with U.S. Citizenship and Immigration Services (USCIS) in most EB-2 and EB-3 positions, the employer must first obtain an approved labor certification from the Department of Labor (DOL). An application for labor certification is submitted to the DOL by using ETA Form 9089.

The DOL must certify to the USCIS both that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job offered the alien at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
By approving a labor certification (LC) request, the Employment and Training Administration (ETA) of the DOL certifies that:

  • There are no U.S. workers who are able, willing, qualified and available to accept the job,
  • at the prevailing wage for that position,
  • In the geographic location of intended employment, and
  • hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Starting March 28, 2005, employers must file ETA Form 9089 under a new LC program named PERM. All previously filed LC applications under either traditional or RIR regulations will still be processed by the two Backlog Elimination Centers in Philadelphia and Dallas. Earlier cases may be withdrawn and refile under PERM for the same employment, but there are complications and risks of losing earlier priority dates (PD) if not handled correctly. Since PD is critical at times of visa retrogression, and all existing backlogs are expected to be completed by September 30, 2007, it is no longer a favorable option.

In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market before filing the application. If sufficient able, qualified, and willing applicants (U.S. citizen or Permanent Resident) are not found for a position through the recruitment process, the employer can submit a PERM labor certification application.

Under PERM regulations, employers have the option of submitting the labor certification application, electronically or by mail, directly to the DOL for adjudication. No supporting documents are submitted at the time of filing. However, the petitioning employer must conduct all required recruitment activities, and have all supporting documents ready prior to filing. Recruitment documents (such as website printouts, newspaper tear sheets, job orders, etc.) should be saved by a petitioner for 5 years to ensure compliance with a potential audit or review. According to the DOL, an electronically filed PERM labor certification application was originally expected to be adjudicated in around 45-60 days unless the case was audited. The current processing time for unaudited PERM applications is closer to 90 days. If the case is selected by the DOL for auditing, the petitioning employer should submit all requested documents to the DOL within 30 days. If the employer does not respond to the audit request, the case is deemed abandoned and the employer may be required to conduct “supervised recruitment” for any future labor certification.

After the labor certification is approved by the DOL, an Immigrant Petition related to the labor certification should be filed with the USCIS before the expiration of the labor certification. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.

The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2 and is not required for any EB-1, EB-4, or EB-5 petitions.

PERM Filing Procedures

  • Complete all recruitment activities
  • Request a prevailing wage determination from SWA. Submit the information on Form 9098 including the prevailing wage, tracking number, the SOC/O* (OES) code, occupation title, skill level, wage source, determination date and expiration date. Note that under PERM, the salary offered to the foreign worker must be equal to or higher than the prevailing wage, which is different from the old requirement that can be within +/- 5% of the prevailing wage.
  • Complete Form 9098 – Application for Permanent Employment Certification, including detailed job duties and requirements on education, work experience, training/certification, and specific capabilities. A statement of the prospective foreign worker’s qualifications is also required.
  • Signatures of the employer, employee, and attorney or anyone who prepared the forms. An application filed electronically also must be signed by all parties upon confirmation that the application has been received.
  • Retain all supporting documentation and records for 5 years. They are not required in the application, but must be available in case of an audit or otherwise requested by an certifying officer.
  • Register an employer account with DOL’s online system at www.plc.doleta.gov.
  • File the PERM application electronically through DOL’s designated website. An employer may file the case by mail, but e-filing is strongly recommended.
  • Receive an approval within a few days to two months, if all goes well. If the case is randomly selected for audit, it may take several more months to be certified.

Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at 858-248-3986. You can also contact us conveniently online by emailing us at crickardlaw@gmail.com. We will use their experience, expertise, and teamwork to ensure the highest quality of service.