Employers can help potential foreign national employees obtain a green card based on employment through the PERM labor certification process. To sum it up, they need to follow a few steps:
- The PERM labor certification process
- The I-140 Immigrant Petition
- The I-485 Application for Adjustment of Status (AOS) to obtain Permanent Residence
The PERM labor certification process is long and complex. We divided it into three phases to facilitate the process for our clients. This FAQ covers Phase 1 of the PERM labor certification process, which includes:
- Developing a strong case strategy and outline
- The very important determination of the job title and requirements
- Employer registrations for PERM and State Workforce Agency
- The subsequent analysis, strategy, drafting and filing of the prevailing wage determination
What is PERM?
The U.S. Department of. Labor (DOL) uses the PERM (Program Electronic Review Management) system to structure how employers conduct and file labor certification. The PERM application is a 15-page document which:
- Outlines all the steps the employer took to test the local job market for qualified workers
- Describes the requirements of the position and how the foreign national meets the requirements
- Provides information about the employer and the offered wage.
Employers must keep documentation of all the recruitment steps, applicants and their backgrounds, and lawful reasons for not selecting U.S. workers. The employer must submit this documentation to DOL in the case of an audit. We work with our clients to prepare the required PERM and audit file.
Why is the PERM/LC process complex?
The process requires substantive legal knowledge of stringent and always evolving case law, process, and requirements. We recommend consulting with someone who has practical experience dealing with the recruitment process, the timing, and terminology. This kind of help can prove critical. You should hire an experienced immigration attorney if you are interested in filing a PERM/labor certification.
What does the Marks Gray Immigration Team do for clients during Phase 1?
Among other services, our team will:
- Collect and analyze information and documents about the sponsoring employer, the foreign national, and the proposed job
- Review and analyze the qualifications of the foreign national versus the PERM job requirements, including issues relating to the degree, job duties, and prevailing wage, and we will advise and guide our clients as applicable — for example, the DOL might require a foreign degree evaluation and/or experience letters
- Research, obtain, and analyze recently certified PERM in the job category for case strategy
- Draft, discuss, revise, and finalize the full-time permanent job description — including title, duties, and requirements based on the information provided by the clients
- Guide PERM and SWA registrations
- Draft, discuss, finalize, and file the Prevailing Wage Determination (PWD)
- Guide, discuss, revise, and finalize experience letters and/or credentials
- Monitor and advise you about changes in law, procedure, and processing times that might affect your case processing
Does a part-time position qualify for PERM labor certification?
No. The employer must offer a job that’s a permanent and full-time position. However, note that employer should intend for the labor certification position to be a future position, one that becomes active after issuance of the green card. You are not required to work full-time, or for the sponsoring employer, at the time that they file the labor certification petition.
What is the priority date and why is it important?
The DOL sets the priority date depending on the date when they receive the labor certification filing. This date is very important, because it places the foreign national “in line” for an immigrant visa. The priority date determines when a foreign national can file for adjustment of status (AOS), the last step of the green card process. Thus, if your goal is to apply for a green card, it is crucial that you begin the PERM process early. If the priority date is not current, the foreign national waits “in line” for the priority date to become current.
Does the DOL require an employer to register with the DOL to file a PERM?
Yes. We guide and work concurrently with our clients through this process, which can take a few days, up to a few weeks.
What is the prevailing wage?
An employer must obtain a Prevailing Wage Determination (PWD) from the DOL before filing the labor certification. The DOL determines the wage level based on the position’s description and requirements. A concise and objective job description is essential to obtaining the most appropriate PWD. The job description should not include every duty or requirement for the position. However, it does need to contain the objective and necessary requirements. The higher the requirements, the higher the prevailing wage. The PWD issued by the DOL should reflect the average wage paid to similarly qualified workers in similar specific occupations and careers.
The employer must pay the prevailing wage at the time the foreign national receives the green card on the basis of the labor certification. The employer has to demonstrate that they have the ability to pay the offered wage. And this applies from the time they file the labor certification until the foreign national receives the green card.
Should I use my company’s standard job description and requirements for the PERM application?
We recommend not to do that. As part of the PERM labor certification process, the DOL will compare your standard job duties and requirements for the position with the job duties and requirements described in DOL’s online Occupational Information Network (O*Net). If your position job description is inconsistent with the O*Net requirements, you might be required to explain the differences and justify them based on business necessity.
Additionally, PERM job requirements should not include subjective determinations, such as “strong” knowledge of a product or skill. Experience gained with the sponsoring employer generally, cannot be used to qualify for the PERM position unless the applicant’s prior position(s) with the employer is significantly different from the PERM position. Foreign language requirements should generally be avoided. If a requirement is one that could be gained with a reasonable period of on the job training, this requirement cannot be used as a basis to reject an otherwise qualified U.S. worker.
Can I use special skills and requirements in the job description?
Although the employer can issue special job requirements, they should be used sparingly. DOL might question job description and position requirements that include extensive certifications and technical knowledge. If supervision is not a major part of the position, it might be best not to include it, as it skews the PWD.
As to travel requirements, DOL has indicated that travel which is sporadic and to conferences should not be included in the job description. A travel requirement might add a point to the PWD.
How do you obtain a Prevailing Wage Determination?
With the input of our clients, we analyze and determine the most appropriate Occupational Employment Category. Then we prepare and file the PWD request with the National Prevailing Wage in Washington D.C. to start the PERM labor certification process.
The PW request must include:
- The job title
- Job description
- Area of intended employment
- The requirements for the job (i.e., the O*Net category, education level, years of experience, and any other special requirements)
What can an employer do if it does not agree with the PW determination?
An employer can submit additional information to the DOL and request reconsideration. However, in most cases, the DOL stands by its original decision. Often, an employer may need to reevaluate the requirements of the position and refile the PWD.
How much time does the DOL take to issue the PWD?
Currently, you can receive a “clean” PWD — without a Request for Information or “RFI” — in 2 to 3 months for adjudication.
How important are the job title, description, and requirements to the labor certification process?
These are key components of the process. The employer must carefully draft the job description and requirements as they determine the pool of potential job applicants. Also, they determine whether the position will meet the technical requirements for a successful PERM application and the level of the PWD. The DOL does not permit unreasonable minimum job requirements specifically tailored to the foreign national. This could prompt an audit. For example, the DOL may deem a foreign language requirement unduly restrictive, and this could trigger an audit.
How long does the DOL take to process a PERM application?
Currently, employers can expect a “clean” applications (without an audit or another request) in about 5 to 6 months from filing of the PERM to adjudication. However, take note that the pre-PERM filing process, including obtaining the PWD, also takes 5 to 6 months. This leads to a total processing time for a “clean” case of about one year. If the DOL audits your PERM case, processing times can extend to 1.5 years or more.
Does the LC expire?
Yes. The LC expires 180 days after it is certified by the DOL. The employer and employee must be ready to file the I-140, Immigrant Petition, within the validity of the LC.
What happens if an LC is selected for an audit?
The employer is required to respond to the audit and provide supporting documentation within 30 days of the request by a Certifying Officer (CO). After the employer submits the documentation, the CO can:
- Approve the application
- Request additional evidence
- Deny the application
The CO may also require that the employer undertakes additional supervised recruitment. The supervised recruitment involves new recruitment directed by the CO.
Can I withdraw an application if it is selected to be audited?
No. If the application is selected for an audit, the employer cannot withdraw the application, and they must respond to the audit.
What are the differences and similarities between EB-2 and EB-3 immigrant preference categories?
Unlike the EB-1 First Preference Category, the EB-2 and EB-3 both require the applicant to successfully complete the PERM labor certification process before applying for the I-140, employment-based immigrant visa.
Whether a petition qualifies for EB-2 or EB-3 depends on the requirements of the position, as stated in the labor certification and immigrant petition. For an EB-2 petition, the position must require the minimum of a Master’s Degree (or foreign equivalent) or a Bachelor’s degree plus five years of progressive experience. And for an EB-3 petition, the position must require at least a Bachelor’s degree.
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Phase Two FAQ’s will be available shortly, so check back for additional updates.
Throughout the entire process, we are available to guide you and respond to any questions or concerns that arise. For more information about your Immigration situation or to learn how the Marks Gray Immigration team led by Giselle Carson may assist you today, please email [email protected].
Originally posted September 16, 2016. Updated January 31, 2023.