EB2/3 PERM Labor Certification

Introduction

U.S. employer can sponsor a foreign worker for an immigrant petition after obtaining a PERM labor certification from the Department of Labor.

In PERM labor certification, the employer certifies that there are not sufficient U.S. workers who are able, willing, qualified, and available for the sponsored position at the time of application at the place whether the worker will work. Also, the employer must certify that the employment of the foreign worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.

Who can submit PERM Labor Certification?

U.S. employer with an IRS tax identification number (FEIN) which currently has a U.S. location to which the foreign workers will be employed and which has an employer-employee relationship with the sponsored worker can submit the PERM labor certification. Employer-employee relationship is indicated by the fact that it hires, pays, fires, supervises, and otherwise controls the work of such employees.

What are the key requirements of a PERM Labor Certification?

Prevailing Wage Determination (ETA-9089)

Prior to PERM submission, the employer must first submit a prevailing wage determination (PWD) for the offered position from the Department of Labor. The employer identifies the position, its duties, minimum requirements, and job location, and the Department of Labor issues the PWD for the offered position.

Recruiting Process

Prior to PERM submission, the employer must test the labor market to determine whether an able, willing, qualified, and available U.S. worker exists for the offered position.

All employers must complete following recruitment prior to filing the PERM application.

Notice of filing – Employer must provide a notice to the bargaining representative or, if none exists, post a notice to the employer’s employees at the location of the employment for at least 10 consecutive business days.
Newspaper Advertisement – Place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment.
Job Order – Place a job worker with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days.

For a professional occupation, the employer must also complete at least 3 out of following 10 recruitments:

Job fair
Employer’s website
Job search website other than the employer’s
On-campus recruiting
Trade or professional organization
Private employment firm
Employee referral program with incentives
Campus placement office
Local and ethnic newspaper
Radio and television advertisements

PERM Labor Certification

After the employer determines that no able, willing, qualified, and available U.S. worker exists for the sponsored position at the place whether the worker will work, the employer can submit the PERM Labor Certification.

Upon certification, the employer must submit an immigrant petition to the USCIS within the PERM validity period.

When can I get my green card?

The process for become a lawful permanent resident (LPR or “green card” holder) via PERM Labor Certification involves three phases.

PERM labor certification. PERM certification means that the Department of Labor has certified that the sponsored position meets the requirement to start the immigration process. Upon PERM certification, the employer must seek immigrant petition approval from the USCIS based on the applicable immigrant visa petition category (usually EB2 or EB3).
EB2 or EB3 immigrant visa petition. EB2 or EB3 immigrant visa petition approval means that USCIS has determined that the individual is qualified to become a lawful permanent resident (LPR or “green card” holder).
Adjustment of status or immigrant visa processing. Upon approval (or currently with immigrant visa petition, if available), the individual must begin the process to become a lawful permanent resident to live permanently within the U.S.

Note: PERM certification or EB/EB3 immigrant visa petition approval does not grant any status by itself. Thus, the beneficiary worker must maintain a valid nonimmigrant status and work authorization to stay and work in the U.S.