PERM
Labor Certification Process
PERM is the process
for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence
through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising
and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.
Employment-Based Green Card Application involves the following three steps:
1)
PERM Labor Certification Process:
a)
30 Day PERM Labor Certification Recruitment and Advertisement
Period;
b)
30 Day Mandatory Waiting Period (from the last date
of advertisement and/or recruitment);
c)
File PERM Labor Application Online with the US Department
of Labor or Directly File with either the Atlanta Processing Center or the Chicago
Processing Center (at the end of the 60 day PERM process);
2) File I-140 Immigrant Petition for Alien Worker;
3)
File I-485 Application to Register Permanent Residence
or Consular Processing at US Consulate Abroad once your Priority Date is current for your
employment-based preference category is current.
The PERM Application Process briefly
involves the following steps:
1) Submit and Obtain a Prevailing Wage from the State Workforce Agencies before filing and 100% of
the wage must be offered by the employer.
2) Recruitment and Advertisement must be completed during the period 30 days to 180 days prior to filing
the PERM Labor Application Online, which includes:
a)
For Professional Positions, you must
complete the following:
(1) 30 Day Job Order
(2) 2 Consecutive Sunday Advertisement in Local Newspaper
(3) 2 Internal Job Postings at Job Site for 10 Consecutive Business Days
(4)
Mandatory Use of In-House Media if it is the employer’s
normal practice/procedure to post a similar position in the business.
(5) Choice of three of the following additional advertisement means:
a.
Job fairs
b. Employer's web site
c. Job search site other than employer's
d. On-campus recruiting
e. Trade or professional organization
f. Private employment firms
g. Employee referral program, if it includes identifiable incentives
h. A notice of the job opening at a campus placement office
i. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
j.
Radio and TV advertisement
Only
one of the additional recruitment steps may take place within 30 days of filing. Dates and methods of each step must be listed
in the filing.
b) For Non-Professional Positions,
you must complete the following:
(1) 30 Day
Job Order
(2) 2 Consecutive Sunday Advertisement
in Local Newspaper
(3) 2 Internal Job Postings
at Job Site for 10 Consecutive Business Days
PERM Audit -- The Certifying Officer (CO) can audit the case if s/he
finds the case suspicious either in its content, recruitment activities, or the authenticity of the job opportunity. The CO
can also randomly select cases for auditing. The employer will have to timely submit all requested documents to address the
CO. If the employer does not respond to the audit request, the case is deemed abandoned. We do not recommend not
responding to an audit since the CO may see this as the employer's refusal to auditing. Then CO may determine that
the employer may be required to conduct “supervised recruitment” for any future labor certification the employer
tries to file for up to two years.
At the same time, any “restrictive job requirements” such as
a language requirement will automatically trigger an audit from the CO. This audit can be properly responded to and
overcome with the proper documentation to establish the “business necessity” of the specific job requirements.
For example, we can clearly establish business necessity of the a language requirement if the employee is required to
use the language for more than 50% of his day-to-day job and has supporting documentation in the form of correspondences
and attestations from colleagues and clients attesting to this fact. We can also show the nature of the business alone
requires the language, such as a translating service requiring its employees to speak a specific language.
Document
Retention – Even though we are not required to provide
the Department of Labor with any of the PERM Recruitment or Advertisement documentation; the CO can at anytime request this
information in the future and therefore the employer retain all documents for at least five years.
Source: Department
of Labor. Refer to PERM Final Regulations for additional information.
Five Employment-Based (EB) Preference Categories
EB-1: Employment Based First Preference Category allows applicants to apply for a green card
without an employer or a labor certification. This category includes the following sub-categories:
EB-2: Employment Based Second Preference Category applies to professionals holding advanced degrees
and aliens of exceptional ability. These two options do require a labor certification and
an employer. The National Interest Waiver also falls under this preference category but this option does not require a labor certification or an
employer.
EB-3: Employment Based Third Preference Category applies to skilled laborers,
either with a bachelor’s degree or a minimum of two years of professional work experience, and all other unskilled laborers.
This category includes Schedule A Nurses and Physical Therapists as the minimum degree requirement is a bachelor’s degree. This category requires a labor
certification.
EB-4: Employment Based Fourth Preference Category refers to Special Immigrants including religious workers, battered spouses, medical doctors who have practiced since 1978 and long-term US government
workers abroad. This category does not require a labor certification.
EB-5: Employment Based Fifth Preference Category refers to Immigrant Investors who will invest a minimum of $1 million in the United States and permanently employ at least 10 US workers or those
who invest a minimum of $1/2 million in a targeted employment area. This category does not require a labor certification.
Contact a US Immigration Attorney now for a free initial consultation. Our employment based immigration attorney will meet
and discuss with you and/or your employer step-by-step what permanent residency/green card option is best for you and/or
your employer. We will make the process as stress-free and streamlined as possible. Call us now toll free at 800-993-9097.
