A labor certification is often the first step for foreign nationals in the process of obtaining a work visa in the United States. Since 2015, Program Electronic Review Management (PERM) has been the official system used by the U.S. Department of Labor (DOL) to process labor certifications. Previously, state agencies participated in the judgment process but that is no longer the case. All labor certifications are handled at the federal level. Since the PERM labor certification is difficult and time-sensitive exercise even for seasoned professionals, you might consider consulting with an experienced immigration law expert before filing.
Which Employment-Based Visas Require Labor Certification?
If you’re applying any of the following work visas, the process starts with having your prospective employer obtain an approved labor certification from the Department of Labor:
- EB-2 Visa applicants (excluding National Interest Waivers)
- EB-3 Visa applicants
The labor certification requirement is waived for any National Interest Waiver (NIW) petitions under the EB-2 visa category. Labor certification is also not needed for any EB-1, EB-4, or EB-5 visa petitions.
What Does an Employer Deed to Do?
Even though an attorney is often heavily involved during the process, the Department of Labor requires some parts handled exclusively by the employer. Your employer will be needed to do each of the following:
- Provide information and documents about the employer and job description.
- Register for an online PERM account (if filing electronically).
- Review and approve documents and reports prepared by the attorney.
The PERM Process
Before filing for any sort of labor certification, the petitioning employer must first conduct a series of recruitment activities designed to test the area’s labor market to see if there truly is not a sufficient number of able, qualified, and willing U.S. job applicants. If that is indeed the case then, and only, then can the employer submit a PERM labor certification application on behalf of anybody. Employers may use website printouts, newspaper tear sheets, and job orders as evidence to demonstrate recruitment activities. This documentation should be saved for at least five years in case of an audit.
The immigration applicant’s potential employer starts the process by submitting ETA Form 9089 to the Department of Labor. They must show that not enough U.S. workers are able, qualified, and willing to accept the job offer in the area where the employer intends to hire a foreign worker. The job must pay the prevailing wage for the area, and the employer must also show that, by employing the foreign worker, wages and working conditions of similar U.S. workers will not be otherwise adversely affected.
The Department of Labor estimates that PERM labor certification applications should be ruled upon within about 45 to 60 days. If a case is selected for auditing, the employer must submit all requested documents within 30 days. Unanswered audit requests could be designated as abandoned and subsequently denied, and unresponsive employers may be required to undergo supervised recruitment for any subsequent labor certification applications.
Once the Department of Labor approves a labor certification, the employer must file an associated Form I-140 with U.S. Citizenship and Immigration Services (USCIS). Be careful to move on this quickly because the labor certification’s validity period expires in 180 days.
