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Permanent Residence Based Upon Labor Certification/PERM (EB-2 and EB-3)

Q: What is labor certification, and what is "PERM"?

A: Labor Certification is a process through which the U.S. Department of Labor certifies, essentially, that no U.S. worker is ready, willing and available to take a specific job.

The process is necessary for a foreign national to obtain permanent residence based upon employer sponsorship for a specific job - unless the situation fits the criteria for one of the permanent residence pathways which do not require labor certification. These include:

  • EB-1 Extraordinary Ability;
  • Outstanding Professor or Researcher;
  • Multinational Executive or Manager;
  • EB-2 Exceptional Ability ( the National Interest Waiver criteria are met), and
  • Schedule A Precertification Cases

All non-Schedule A EB-3 cases, and all non-Schedule A EB-2 cases which do not meet the National Interest Waiver criteria, will require labor certification. So, for most people trying to get permanent residence through employer sponsorship, this will be the first step in the green card process and a prerequisite to filing with U.S. Citizenship and Immigration Services for the green card. Labor Certification is always accomplished through a filing with the Department of Labor.

PERM is the name of the current set of procedures through which the labor certification process is accomplished. A system put in place in 2005, "PERM" stands for Program Electronic Review Management and represented a move to on-line filing from an old paper-based system. The way in which this program works is described in more detail in our PERM Labor Certification FAQ.

Q: What are the basic principles of labor certification?

A: Labor certification seeks to ensure, through an actual test of the labor market, that no U.S. workers who are minimally qualified to perform the job being offered to the foreign national are available and willing to perform this job. The test of the labor market must include a recruitment campaign including advertisement of the position and evaluation of U.S. workers who apply for the job.

The Department of Labor may only certify that no qualified U.S. workers are available and willing to accept the position if:

  • A position has been offered which complies with DOL guidelines;
  • The position is offered on terms which comply with Department of Labor guidelines;
  • Recruitment has been conducted in accordance with Department of Labor guidelines; and
  • No U.S. workers applied who were qualified for the position offered and willing to accept the position on the terms offered.

For purposes of the existing PERM program, the nature of these guidelines is discussed in greater detail in our PERM Labor Certification FAQ.

Q: How can an employer recruit for a position when the foreign national worker is already employed in the position on an H-1B or some other visa?

A: Legally speaking, the job is NOT permanently filled when the worker is still on a non-immigrant visa and is considered to be open. By filing for labor certification, the employer is seeking permission to hire a foreign national worker to fill the position on a permanent basis. If the employer sponsored the employee for a temporary visa such as an H-1B, it was only to work in the position on a temporary basis, and the foreign national is considered a temporary employee.

Q: In some ways, the PERM program used to complete the labor certification process sounds like the Labor Condition Application ("LCA") which is part of the H-1B Non-immigrant Visa Petition - are they anything alike?

A: In some ways they are similar, but in some ways they are very, very different.

Similarities

Both the Labor Condition Application and PERM labor certification are programs administered by the U.S. Department of Labor under the theory that they offer protection to the American work force.

Both are prerequisites to requesting an immigration benefit from US Citizenship and Immigration Services (a Labor Condition Application must be approved before an H-1B non-immigrant visa is requested from USCIS, and a labor certification must be approved before an I-140 immigrant preference petition is filed with USCIS for most 2nd and all 3rd employment-based permanent residence cases).

Both are "attestation-based" programs - meaning that the employer makes certain promises or pledges to the Department of Labor concerning various aspects of the job opportunity and the business. This is actually a fairly recent change - before the PERM program went into effect in early 2005, the labor certification program was not attestation based; rather, the employer always needed to submit evidence to prove certain things to the Department of Labor prior to approval.

Both have wage requirements, where the employer must pay at least a certain level of wage to ensure that the pay for the job offered does not undercut wages offered to U.S. workers.

Differences

The PERM program is an actual test of the labor market, using a process of active recruitment and evaluation of U.S. workers who apply for the position. The Labor Condition Application does not seek to test the labor market (in most cases - certain employers are subject to a labor market test even for the LCA), but only to give notice to U.S. workers through a posted notice that the employer seeks to hire an H-1B worker.

The PERM program, largely due to its nature as a real-world test of the labor market, is a far more involved and time-intensive process during the preparation phase which requires direct employer involvement and takes at least several months to complete prior to filing. What is actually done during this preparatory time is covered in greater detail in our PERM Labor Certification FAQ, but the entire process – even filling out the online form – can be extremely complicated and time-consuming. By contrast, the Labor Condition Application is relatively simple to prepare, involving determination of the required wage, review and signature of the documents and a posting by the employer - rarely taking more than two to three weeks to complete at most. While PERM involves all of these things, it also involves a great deal more.

Once filed (submitted electronically), the processing time for a PERM application is normally several months, with audited cases often taking much longer. A Labor Condition Application, in most cases, is electronically adjudicated within about a week upon submission. In some cases, adjudication may take two or more weeks if some aspect of the case needs to be reviewed by a DOL officer.

Once approved, the PERM application is valid for 180 days, and must be filed in support of an I-140 Immigrant Visa Petition within that time. A Labor Condition Application can have a validity period up to three years, and the H-1B must be filed during that period (and can request no more than the time remaining on the longest-running LCA submitted).



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.