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Labor Certification/PERM

Overview

A permanent Labor Certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. First, employers must seek labor certification through the U.S. Department of Labor (DOL). Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (US CIS) for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker, if he is residing outside of the U.S. during the process, for U.S. entry. If the foreign worker is already in the U.S., he or she can apply to adjust their status to permanent resident without leaving the U.S. The employer must obtain an approved Labor Certification (LC) request from the DOL's Employment and Training Administration (ETA). This is done by submitting the LC application via the DOL’s Permanent Electronic Review Management (PERM). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job 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.

Labor Certification Requirements

a. The Job:

• The job opportunity must be for a full time, permanent position. There must be a bona fide job opening available to U.S. workers. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

b. The Prevailing Wage:

Prior to filing the LC application, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the LC application the following information provided by the SWA:

• the prevailing wage,
• the prevailing wage tracking number (if applicable),
• the SOC/O*NET (OES) code,
• the occupation title,
• the skill level,
• the wage source,
• the determination date, and
• the expiration date.

c. The Recruitment Requirements:

All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application. Recruitment for professional positions must include the following:

• Placement of a 30 day job order with the State Workforce Agency (SWA) having jurisdiction over the area of intended employment.Notice of filing of alien labor certification posted on job site premises for 10 consecutive business days
• Newspaper advertisements placed on two different Sundays
• At least three additional forms of recruitment from the list below:
  • advertisement on the employer's website
  • advertisement on a recruitment website other than the employer's site
  • advertisement in local or ethnic newspapers
  • recruitment through a trade or professional organization
  • on-campus recruitment
  • job fairs recruitment
  • recruitment through private employment firms
  • employee referral program with incentives
  • use of campus placement offices
  • use of radio and television advertisements.

The employer must prepare a recruitment report in which it categorizes the lawful job- related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

Filing the Labor Certification

The employer must complete an Application for Permanent Employment Certification. In the application, the employer must outline the recruitment undertaken as well as describe, in detail, the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work. In addition, the foreign worker’s relevant education and work experience, if any, must be provided.

The employer has the option of filing an application electronically via the PERM system or by mail. However, the Department of Labor recommends that employers file electronically. In order to file electronically, the employer must first register and establish an account with the PERM system and obtain a user name and a password.

The date the LC is filed with the DOL becomes the alien’s priority date.

When the DOL approves the application, the LC application is "certified" (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application. The application then has to be signed by both the employer and the sponsored employee.

The US CIS Immigrant Petition

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the USCIS. The employer then attaches the certified ETA Form 9089 to a completed petition along with other USCIS specified supporting documentation and the required fees, and submits the package to the appropriate USCIS Service Center.

The Adjustment of Status Application

Timing of the Adjustment of Status (AOS) Application depends on visa availability. The United States Department of State publishes a monthly visa bulletin which lists cutoff priority dates for different immigration categories and birth countries. Only those intending immigrants with priority dates before the cutoff date are permitted to file their AOS applications and obtain their green cards.

If a visa is available for the alien’s priority date when the LC is approved, he or she can file the AOS application at the same time that the employer files the immigrant visa petition. If a visa is not available at the time of LC approval, the alien will not be able to file to adjust status to permanent resident until (a) the immigrant visa petition is approved, and (b) a visa becomes to him.

Schedule A Occupations

Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. Persons in Schedule A Occupations can bypass the LC process and have an immigrant petition filed by their employer directly with the US CIS.

The occupations listed under Schedule A include:

• Physical Therapists - who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy; and
• Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or (iii) the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.
• Sciences or arts (except performing arts) - Aliens (except for aliens in the performing arts) of exceptional ability in the sciences or arts including college and university teachers of exceptional ability who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States. For purposes of this group, the term "science or art" means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill. An alien, however, need not have studied at a college or university in order to qualify for the Group II occupation.
• Performing arts - Aliens of exceptional ability in the performing arts whose work during the past 12 months did require, and whose intended work in the United States will require, exceptional ability.

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