PERM FAQs
What is the purpose of a labor certification?
The purpose of the labor certification process is to protect the employment prospects and working conditions of U.S. workers. To obtain a labor certificate, one must prove to the DOL that there are no qualified, available and willing U.S. workers for the position offered to the alien. Specifically, the labor certification process requires the employer to test the local labor market to determine whether there is a qualified U.S. worker (permanent resident or U.S. citizen) available to fill the proposed position. Only when the employer shows that it cannot find a qualified and willing U.S. worker to take the position offered, may the employer file a PERM labor certification for an alien beneficiary who is qualified for the position.
What happens if the Prevailing Wage Determination comes back too high for my employer to pay?
If the wage issued is higher than what the employer is willing to pay, it is possible to look at alternative classifications, where the average wage is lower. DOL policy on combination of occupations cases is to assign the highest Prevailing Wage that applies. Alternatively, the employer can file a report from another wage data source with a request that it be used instead of the PWD with the labor certification application. The DOL is not bound by this. If the DOL denies the request, the employer has a right to appeal to the Board of Alien Labor Certification Appeals (BALCA). The requests for PWD review by the BALCA must be in writing and must be made no more than 30 days after determination. The employer can alternatively file a new PWD request with the NPWHC and use the new PWD instead.
Who is a qualified U.S. worker for purposes of a labor certification?
Legal Permanent Residents (green card holders) and U.S. citizens. Applicants who do not hold these statuses will not negatively impact the recruitment process.
Can I file a PERM application for myself?
No, the process must be filed by a U.S. employer. The foreign national is the beneficiary of the labor certification, not the petitioner.
What happens if there is a qualified U.S. worker found during the recruitment process?
If during the recruitment process the employer receives an application from a minimally qualified, available, and willing U.S. worker, then the PERM process must cease and a Labor Certification Application cannot be filed. There must be a six month “cooling off period” before the process can be re-started.
What documentation does an employer have to keep in a Recruitment Report?
The employer needs to maintain documentation of all resumes received: both qualified and unqualified, for the recruitment report. The employer should conduct interviews with those applicants who meet the minimum job requirements, record interview results, and keep records to explain why any applicants were deemed unqualified. The recruitment report is a statement detailing the recruitment activities, applications, interviews, and the decisions concerning all applications. There are several specific required items in the report according to the PERM regulations. Although the report is not required to be submitted with the initial PERM LC application, the PERM regulations require the employer to sign the recruitment report prior to filing the application. Further, the employer should submit the recruitment report and other documents to the DOL within 30 days upon the DOL’s request, in the event the case is selected for auditing.
How long does the process take?
Processing times vary widely over the years, but currently the DOL is processing Prevailing Wage Requests at 10 months and Labor Certification Applications at 9 months. An audit will push the timeline even longer.
Can I expedite the process?
There is no means to expedite.
I made a mistake on the application, can I go back and fix it after it’s been filed?
No, once the applications have been filed there is no way to fix an error. You can withdraw and re-file a new application, provided that the timeline permits a new filing.
Are there filing fees associated with the Labor Certification?
There are no government fees associated with the process.
Can an employer require a foreign language as a job requirement?
Yes, but it must be deemed a business necessity. A requirement of a foreign language for the job will likely trigger an audit of the application by the DOL. A business necessity exception might exist if the position directly requires language performance, such as a Chinese language teacher, or if the business exclusively conducts business with clients who speak Chinese.
Do I have to be currently employed by the sponsoring company for them to file a labor certification on my behalf?
No. The position may be a future role or it can be an existing role that the beneficiary already holds with the company.
Does a certified PERM Labor Certification authorize me to work in the U.S.?
No. The Labor Certification allows the employer to then file an Immigrant Worker Petition (I-140) with USCIS requesting a permanent worker. Depending on the preference category and country of birth of the beneficiary, the final stage of Adjustment of Status or Consular Processing may also be filed at the same time as the I-140. The employee must hold a valid nonimmigrant visa or EAD card to be currently working for the employer during the PERM process.
What are the employer requirements for a PERM labor certification application?
The employer must attest to the following:
This is a bona fide (good faith) job offer; and
The job offer meets prevailing job wage minimum requirements; and
The offered working conditions and environment do not adversely affect those of U.S. workers; and
There is no qualified U.S. worker available to fill the position.
What is the difference between EB-2 and EB-3 PERMs?
EB-2 refers to the 2nd preference of employment-based immigration petitions. A position that requires a minimum of a master’s degree or a bachelor’s degree plus five years of post-baccalaureate progressive experience may qualify for an EB-2 category. A position that requires at minimum a bachelor’s degree or two years of experience falls in the EB-3 category. In adjustment of status or consular processing, EB-2 and EB-3 visa availability may be different.