PERM Labor Certification

Program Electronic Review Management (PERM) 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.

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. 

PERM took effect on March 28, 2005 and all labor certifications submitted after March 28, 2005 must be filed using the PERM process. Since March 28, 2005 traditional labor certification (ETA Form 750) and Reduction in Recruiting (RIR) have NO LONGER been applicable to new filings. 

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.