PERM labor certification steps

Knowing the PERM labor certification steps will help you in obtaining employment-based lawful permanent residence in the United States.

PERM, or Program Electronic Review Management, is the first step in the application process to obtain a Green Card through employment in the US. Our immigration lawyers in New Jersey will be with you throughout this application process. Call us today or make an appointment at our Ridgewood or Newark, New Jersey offices. 

PERM Labor Certification Steps In 2023

To apply for PERM, you must meet the elements outlined in 20 CFR § 656.17. This procedure can be somewhat confusing, so we invite you to read the article carefully. 

Step 1: Posting A Job Offer in the United States

The first step to a PERM application is for a US business or employer to try to find a worker (citizen or lawful permanent resident) in the United States who can meet all of the requirements for the business position or responsibilities. 

The way in which you should look for an American worker, can be through a job offer publication in:

• The company website.
• Job fairs.
• Local media, such as:
  • Radio and television advertisements.
  • Local newspapers.
• Employment organizations, job search websites, or private employment firms.

This procedure must be carried out within a period of 30 to 180 days. This will ensure that no American citizen or lawful permanent resident in the US is willing or qualified to perform that job.

Step 2: Request prevailing wage determination (PWD) from DOL

The business or employer will need to establish all job details and submit an online Prevailing Wage Determination (PWD) application to the US Department of Labor (DOL). 

DOL will determine the prevailing wage for the job position based on the specific geographic location, job functions, minimum requirements, and other details. PWD establishes the minimum wage that the employer will have to pay the employee at the time the employee becomes a lawful permanent resident. 

This wage determination seeks to protect the worker and thus ensure that they will not be paid less than what that job requires. The employer may pay the employee more, but may not pay less than what is established by DOL.

DOL is currently issuing a prevailing wage determination in 6 or 7 months (up to 9 months for union positions). 

Step 3: Start The Recruitment Process

After the business or employer receives the prevailing wage determination, ads will be placed to test the labor market. This labor market test for PERM purposes will have to be done according to DOL rules. The recruitment stage may take a minimum of 2 months.

If an able, willing and qualified US worker applies for the position, DOL will stop the process and you will have to wait at least 6 months to reassess the labor market. 

Step 4: Submit The Labor Certification To DOL

If the hiring period has ended and no qualified and willing US workers could be found, the business or employer may prepare and submit the PERM application to DOL through the online DOL ETA 9089 form.

Currently this process is taking between 5 to 6 months, but it could take much longer if the case is audited. The chances of the case being audited is really small, the audit rate is around 25% nationally.

Up to this point (steps 1 through 4), the step-by-step PERM labor certification process steps can take approximately 12 months or more. 

Step 5: Submit Form I-140 To USCIS

When DOL approves the labor certification, the business or employer must file Form I-140, Petition for Alien Worker, with USCIS.

This petition must only be filed if the PERM approval notice is received and will be valid for 180 days. Generally, the I-140 petition is prepared in advance so that it will be ready once the DOL approves the certificate.

This process time is currently taking 6-8 months, but you can apply for “premium processing” with USCIS to reduce the initial processing time to approximately 2 weeks. 

Step 6: Wait For The Priority Date To Update

The immigrant visa number may not be immediately available, depending on the category of the Green Card and the country of origin of the alien worker. You can get more information about this on the official website of the visa bulletin.

If the priority date is in effect when the PERM is approved, the business will be able to file Form I-485 , Application to Register Permanent Residence or Adjust Status alongside the I-140.

In this step it is important to have our lawyer Carolina Theresa Curbelo by your side to provide you with the best legal advice in case the priority date is not within 3 months after the effective date of the visa bulletin.

Step 7: I-485 Application

This is an application for a Green Card filed by the employee named in the I-140 petition and their derivative family members (children and spouse). As long as the priority date is current, it can be filed after I-140 approval or at the same time.

This application focuses on the employee’s eligibility to receive a Green Card (the absence of a criminal record or other grounds of inadmissibility). As part of the application process for adjustment of status in the United States, a travel or employment authorization can be requested that the worker can use while the I-485 is pending.

Travel/employment authorization typically takes 4-5 months after filing at which point the employee no longer needs their H-1B visa, although they can continue to use it until their Green Card is approved. 

Step 8: The Worker Must Attend The Interview With The USCIS Officer

Approximately 12 months after submitting the required PERM documentation, USCIS will send an interview notice to the employee. At the I-485 interview, the immigration officer will review the employee’s Green Card application and all of the employee’s immigration documents.

At the time of the interview, the alien worker must confirm that the job offer is still available to him, in addition to submitting all original civil documents and immigration status documents, such as:

• H-1B approvals.
• Visa stamps.
• SEVIS documents.
• Completed medical exam on Form I-693, Medical Report and Immunization Record.

The Green Card is usually approved 2 weeks to 2 months after the interview. 

On certain occasions, when a visa number is not available, but the interview was successful, the I-485 will be sent to the USCIS National Benefits Center (NBC). If this scenario occurs, USCIS will approve the Green Card as soon as a visa number is available again.

PERM Labor Certification Requirements

Now that we have seen the PERM labor certification steps, it is time to know the requirements to request it. These requirements are divided into several sections, these are:

Employer Requirements

• The business or employer must be registered with DOL online at: www.plc.doleta.gov.
• The employer must ensure that the alien worker meets all eligibility criteria.
• Demonstrate to the DOL that there are no qualified or willing US workers for the job.
• Demonstrate that the hiring of the alien employee will not have a negative impact on the US labor market.

Salary And Job Application Requirements

• The PERM certificate requires employers to obtain prevailing wage determinations from the appropriate State Workforce Agencies (SWAs) prior to application submission.
  • Employers must pay 100% of the prevailing wage for the position.
  • The labor certification application must be filed within the validity period of the prevailing wage determination. They can generally be valid for 90 days to 1 year from the date of determination.
• The job requirements must represent the actual minimum requirements of the employer, be reasonably related to the occupation, and be necessary to reasonably perform the job.
• A foreign language requirement must be accompanied by a justification based on business need.
• For substantially comparable jobs, the employer may not have hired workers with less training or experience.
  • Substantially comparable jobs are jobs that require the performance of the same job functions more than 50% of the time.
• Employers may be required to provide detailed job descriptions to document that they have not hired workers with lesser training or experience, such as:
  • Percentage of time dedicated to functions.
  • Organization charts
  • Payroll records.

Recruitment Requirements Prior To Submitting Applications

• The job offer announcement must be made with SWA for 30 days.
• Two print advertisements must be placed in a newspaper of general circulation in the geographic area of ​​the proposed employment between 30 days and 180 days prior to application.
• The advertisement must have the following necessary elements:
  • Employer’s full name.
  • Inform applicants of the job opportunity.
  • Possess a descriptive job title.
  • Workplace identification.
• An advertisement must be placed in a newspaper of general circulation for 3 consecutive days. One of the days must be Sunday. 
• Employers may substitute an advertisement in a national magazine for an advertisement in a Sunday newspaper when the position requires greater experience and/or a specialized degree.
• The report of the results of the contract must have:
  • Number of hires.
  • Number of US workers turned away. It should be categorized with the job-related legal reason(s) for rejecting applicants.
• An American worker may have a chance for the job if they can acquire the necessary skills to perform the required tasks over a reasonable period of time with on-the-job training.
• DOL may require supervised recruitment for any type of application, whenever necessary.
• DOL may require an advertisement to be placed in a professional, business, or ethnic publication.
• In some cases, DOL will require a detailed contract report.

Other Additional Requirements

• The employer must keep all hiring materials and their results for at least 5 years.
• If the employer has had any layoffs at the sponsored foreign employer’s job or in a related occupation within the 6 months prior to filing, the employer will need to document that it reported and considered all employees laid off. 

Who May Be Eligible For The PERM Program?

To be eligible for the PERM program, you must meet one of these requirements:

• Be a foreign national who wants to work in the US or be a foreign national who is already physically in the US.
• Have a university degree with a master’s or doctorate.
• If you do not have a university degree, you must know a profession such as a farmer, gardener, electrician, cook, babysitter, housework, plumbing or others.
• Be a holder of Non-Immigrant visas. For example, B-2, B-1 visa or others.
• Be under the Temporary Protected Status (TPS) program.
• Foreign students residing in the US
• Foreign investors (It can be through an E-1 visa or an E-2 visa, among others). 
• Anyone with an approved work visa.

Can they deny my PERM application?

PERM certification can be denied on some occasions, this may be due to:

• Failure to comply with the publication deadlines in the job offer.
• Hiding information about existing family relationships between the employer and the sponsored worker.
• Failure to ensure in advance that the worker met the necessary eligibility criteria.
• The process does not have the necessary security measures required by DOL.

Can I Travel Abroad During The PERM Process?

The law does not prevent aliens from traveling while their labor certification is pending, so it is possible to travel abroad during the PERM certification process steps. However, you must ensure that you obtain a valid visa to re-enter the US.

What Happens After PERM Is Approved?

When PERM is approved, the employer will need to go to USCIS to file Form I-140. They will have a maximum period of 180 days after approval to file the I-140.

Can I Change Jobs Once PERM Is Approved?

Generally, it is not possible to change jobs once PERM is approved as it is tied to a particular type of job and employer. However, it is possible to change jobs if you withdraw your current PERM application and receive a new one from another employer. The new employer will need to submit a new PERM application.

How Much Does A Labor Certification Cost?

DOL has not set the cost to apply for PERM, but there are other additional costs for this procedure such as the hiring process, the publication of advertisements, legal advice and others.

In addition, the fees for the forms submitted to USCIS have a cost, these are:

• Form I-485: With a cost that varies between $750 to $1,225.
• Form I-140: With a cost of $700.
• In case of submitting a “premium” application for a faster process, it will have a cost of: $2,500.

How Long Does It Take To Obtain The PERM Labor Certification?

DOL acceptance and processing time can take from 6 to 18 months, depending on the workload and availability of each DOL office.

On the other hand, the immigrant visa application for an alien worker before USCIS can vary between 4 to 12 months.

How Can The Immigration Attorneys At Curbelo Law Help You?

The immigration attorneys at the Curbelo Law firm will be able to help you with the documentation required to meet the critical deadlines of this process and thus guide you to obtain the PERM labor certification steps. Our attorney Carolina Curbelo has extensive experience in immigration labor matters to provide you with comprehensive legal advice.

To contact our firm located in Ridgewood, NJ, you can call, email, or book your consultation online.