PERM Labor Certification: Overview

If you’re an who is seeemployer who wants to hire a foreign worker for your United States-based company, it’s important to understand PERM labor certification. PERM stands for Program Electronic Review Management. It’s required by the Department of Labor (DOL) to prove that no qualified U.S. workers are available to fill a position before a foreign worker is hired. 

PERM labor certification is a critical step in most employment-based green card processes. It involves extensive recruitment efforts, precise wage determinations, and detailed documentation of the entire hiring process. This includes your prospective employer advertising the position according to specific DOL requirements. Prospective employers will also need to demonstrate that any U.S. citizen applicants who applied were rejected for lawful, job-related reasons. 

Who Needs PERM Certification?

PERM labor certification is required for most foreign workers seeking employment-based permanent residence (green cards) through the EB-2 visa and EB-3 visa categories. This includes but is not limited to: 

• Skilled workers
• Professionals
• Some advanced degree holders

There are some workers who are exempt from PERM requirements, too. This can include:

• Applicants who qualify for the EB-1 category (extraordinary ability, outstanding researchers, and multinational managers).
• National Interest Waiver applicants.
• Applicants with Schedule A occupations, like registered nurses and physical therapists.

Why PERM Labor Certification Is Important

The PERM labor certification process is important because it protects the job market and wages of U.S. citizens by preventing them from being negatively impacted by hiring foreign workers. For example, if a company hires a foreign worker for a skilled position with a limited number of opportunities in the United States, qualified U.S. applicants would lose the opportunity. 

PERM labor certification also acts as a safeguard against the potential exploitation of domestic labor. U.S. workers who are displaced from available positions by foreign workers who work for lower wages may end up being forced to accept lower wages or poor working conditions. By verifying the need for a foreign worker in the position, it prevents domestic workers from being undercut. 

How Much Does PERM Certification Cost?

There is no filing fee for PERM certification. However, if you seek out the help of an immigration attorney to navigate the process, you can expect to pay around $2,000 to $6,000 depending on the complexity of the case and the lawyer’s rates. If you’re an employer, keep in mind that you are responsible for all costs related to the PERM process. This includes recruitment expenses and any legal fees. 

How Long Does it Take to Get a PERM Certification?

There is no definite timeline for PERM approval Several different factors can affect the processing time for a PERM application. These include:

Audit

The DOL may audit an application, which can significantly increase the processing time. The DOL has increased its emphasis on compliance, and audits have spiked in recent years. 

Workload

The workload and availability of the DOL office can also affect your PERM application’s processing time. These are some of the factors that can affect how long your approval takes:

• Prevailing Wage Determination: The DOL can take over 168 days to approve this step. 
• Recruitment efforts: This step usually starts after the PWD and can take 30 to 60 days. 
• Form 9089: The DOL takes an average of 387 days to adjudicate Form 9089. 

On average, the DOL adjudicates PERMs in approximately 439 days, which is more than 14 months. However, the processing time could take significantly longer if your case is audited. You can find processing times on the DOL website.

Getting PERM Certification: How Difficult Is It?

The complex application process, strict requirements, and potential for audits by the Department of Labor can certainly make PERM certification a challenge. Even small mistakes can lead to denial. This is why many employers choose to hire an immigration lawyer or use an online immigration document filing website like FileRight. 

Challenges Involved in Getting PERM Certification 

The United States immigration process is almost always challenging, and PERM certification is no exception. Getting labor certification through an employment-based green card involves meticulous attention to detail and strict adherence to DOL regulations. They carefully scrutinize each application, and they will audit or deny your case over even minor mistakes. 

So what are the main challenges PERM applicants and employers face during the process? Some of the most common issues include: 

• Meeting precise recruitment requirements
• Maintaining detailed documentation 
• Adhering to strict timelines
• Navigating the prevailing wage determination process

To avoid disruption to your green card based employment application, prepare accurate job descriptions, maintain consistent documentation, and follow the DOL’s advertising requirements. 

How to Get PERM Certification From the DOL

So how do you get PERM certification? If you’re an employer who needs PERM certification from the DOL, you’ll need to meet these requirements: 

• To start the process, you’ll need a FLAG Account with Login.gov.
• You will also need a valid Federal Employment Identification Number (FEIN).
• The business where the immigrant will prospectively be working will need to have a location in the United States.
• You will need to offer the immigrant a permanent, full-time position that pays higher than the prevailing or actual wage.
• You will also need a prevailing wage determination to determine what most U.S. citizen workers earn for the same position in the area.
• The job will also need to meet reasonable requirements. 
• Finally, you will need to complete and submit Form ETA-9089, the Application for Permanent Employment Certification.

The DOL’s Employment and Training Administration (ETA) runs the PERM program, and their purpose is to make sure approving PERM labor certification for an immigrant won’t prevent an equally capable U.S. worker from being hired for the position.

What Are the PERM Job Description Requirements?

A PERM job description is a lot more complicated than your average job description. You will need to carefully craft it to make sure you’re meeting DOL requirements and accurately represent the duties and requirements of the position. It must also include the position’s actual minimum requirements, without any preferential language or unduly restrictive requirements.

Your job description shouldn’t be too specific, because that might make it look like you tailored it to the foreign worker. However, it also shouldn’t be too general, as this could attract unqualified applicants. 

It is important that your PERM job description matches what would normally be required for this position in your industry. If you have any special requirements, be prepared to thoroughly justify them through business necessity. 

What Is the 365 Day Rule for PERM?

The PERM 365-day rule allows H-1B visa holders to extend their status for one year while their PERM application is being processed. The rule is designed to help foreign workers avoid employment gaps while they wait for their green card application to be approved. 

To qualify for the extension, the following conditions must be met:

• The PERM application must have been pending for at least 365 days
• The H-1B worker must be in valid status at the time of the request

The extension request must be submitted before the current H-1B status expires 

For example, if a PERM application is filed on April 20, 2024, and the visa expires on April 21, 2025, an extension can be requested in January 2025. This would allow the holder to stay in the U.S. until April 2026. 

Give Advance Notice Before Submitting a PERM Application

Before submitting a PERM application, employers must provide advance notification to either the union representative of employees in similar positions or, if no such representation exists, directly to the workers at their workplace. 

This notice must be given between 30 and 180 days before filing and must include several critical pieces of information: the wage being offered (which must exceed the SWA-determined prevailing wage for the field), the Certifying Officer’s address, a statement that anyone can submit proof related to the application directly to the Certifying Officer, and a clear indication that a PERM application will be filed.

After ensuring all these notice requirements have been properly documented and delivered within the specified timeframe, the employer can proceed with completing the permanent labor certification application. This sequential process ensures that all affected parties are properly informed and have the opportunity to participate in the certification process before it formally begins.

What You Need to Know About PERM Documentation

When you’re preparing a PERM application, you’ll need to maintain meticulous documentation of your recruitment process, including detailed records of the position’s hiring requirements and duties. Be prepared to provide proof of specific information about various aspects of your recruitment effort and the position’s qualifications. 

Some of the documentation you’ll need to provide to the Department of Labor includes: 

• Details of all recruitment methods implemented by the employer during the hiring process
• The precise beginning and end dates of the State Workforce Agency (SWA) job order
• Complete information about which newspapers carried the job advertisements
• Specific dates of all recruitment events that were held, if any were conducted
• Chronological documentation of any job postings on online platforms such as Indeed and Monster
• Clear indication of whether the position requires multilingual abilities
• Specification of educational requirements beyond a high school diploma

To complete the application process, employers must also include detailed information about the prospective foreign employee, such as their current address, contact information, and relevant work history. Additionally, if a third party is handling the application preparation, they must provide their professional details, including their full name, position title, and contact email address.

After Labor Certification Approval: What Happens Next?

After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.

This means it’s essential for employers and your legal representatives to carefully track these deadlines and ensure all documentation is properly filed with the appropriate Service Center. Missing this window would require restarting the entire labor certification process, potentially causing significant delays and additional expenses for both the employer and the prospective employee.