PERM Labor Certification Process
The PERM Labor Certification application is a very complex process that typically precedes the immigrant petition. Meyer Law Group specializes in complex PERM procedures and it is in the best interest of the employer to obtain legal counsel, especially when there are layoffs, PERM audits, denials or revocations of labor certifications, insufficient recruitment efforts and recruitment reports, and supervised recruitment efforts.
Some foreign nationals qualifying under the EB-2 (second preference) and EB-3 (third preference) employment-based immigration (“green card”) categories will undergo a “three-step” process towards obtaining a green card:
- Filing a PERM Foreign Labor Certification (“PERM”) with the Department of Labor (“DOL”) is the first step. A DOL labor certification verifies that there are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage, and that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The PERM labor certification application details the terms and conditions of the offered position, including the minimum education, work experience, and special requirements for the proffered position.
- Employer files USCIS Form I-140, Immigrant Petition, on behalf of the employee.
- Employee files USCIS Form I-485, Application to Register Permanent Residence or Adjust Status. Depending on the country of chargeability of the foreign national and whether he or she qualifies under EB-2 of EB-3 preference categories, the I-485 may be applied concurrently with the I-140 immigrant petition, or after a waiting period when the visa becomes available.
Mandatory Recruitment Efforts
SWA (State Workforce Agency): a job order for a period of 30 days must be placed with the State Workforce Agency in the area of intended employment.
The employer must run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. This step must be completed at least 30 days prior to filing the labor certification, but no more than 180 days.
Additional Recruitment Requirements: If an employer is hiring someone for which a bachelor’s or advanced degree is the usual educational requirement, the employer must also fulfill 3 of the following recruitment efforts:
Recruitment at job fairs;
Recruitment on the employer’s website;
Job search website other than the employer’s site;
Use of trade or professional organizations for recruitment;
Use of private employment firms;
Employee referral program with incentives;
Use of campus placement offices;
Use of local and ethnic newspapers;
Use of radio and television advertisements.
Only one of the aforementioned efforts may be conducted within 30 days of filing the PERM labor certification application, and none may take place more than 180 days prior to filing the application.
Notice of the job opportunity must be posted in a clear and conspicuous location for at least 10 consecutive business days within 30 to 180 days before filing the labor certification application. In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization. The notice must explain that it is being provided because the employer is filing a labor certification.