Gudeon and McFadden
Laborious Labor Certifications:  The Complex World of PERM

Updated: July 31, 2020

Every year 80,080 people receive lawful permanent resident (LPR) or ‘green card’ status through one of two employment-based immigrant categories:  EB-2 (members of the professions holding advanced degrees or persons of exceptional ability) or EB-3 (skilled workers, professionals and other workers).  Most of these people will need a job offer from a US petitioner and a labor certification.  The purpose of this article is to explain the labor certification (LC) process. 

The idea behind the LC is a simple one:  Employers should not be able to bring foreign employees permanently to the US unless they can show that US workers are not available for the jobs on offer.  Before an employer can petition for an employee to become an LPR it must obtain from the Department of Labor (DOL) a certification of the following:

  • There are insufficient US workers able, willing, available and qualified
  • The foreigner will not displace US workers or adversely affect their wages or working conditions

For EB-2 and EB-3 categories, a would-be immigrant usually requires both a job offer and a labor certification.  This means, among other things, that most EB-2 and EB-3 beneficiaries cannot sponsor themselves, they must have a would-be US employer sponsor them.  Before a US employer can submit an immigrant petition to the USCIS for one of these alien workers, it must obtain an approved labor certification from the US Department of Labor (DOL).  In 2005, the DOL implemented a new labor certification process—the Program Electronic Review Management (PERM) system.

By going through PERM, an employer seeking to hire a foreign worker on a permanent basis attempts to  demonstrate that:  (1) there are no able, willing, qualified and available US workers to fill the position being offered to the foreigner; (2) the wage being offered for the position is at least the prevailing wage for such work in the geographical area in question; and (3) the hiring of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers. 

The first step in PERM is for the US employer to clearly identify the job duties and the minimum educational and experience requirements for the position.  The DOL provides guidance through its O*Net Online service on what in the way of skills, education and or experience are customarily required for the occupation; the employer may not make additional requirements in an effort to tailor the position to the foreign worker’s qualifications.  Once the minimum requirements are identified, the employer must obtain a prevailing wage determination from the DOL and agree to compensate the foreign national at the prevailing wage level based on the area of intended employment.  The employer must also demonstrate that it is able to pay the prevailing wage.

The DOL has similarly exacting requirements on the method of recruitment and the content of the advertisements to ensure that US workers are adequately apprised of the job opportunity.  The US employer must recruit through major newspapers (two consecutive Sunday advertisements) and post the job opening in the relevant state workforce agency’s job bank.  Notice of filing must also be placed at the location of employment or with the appropriate union.  Professional positions require additional forms of recruitment.

Generally, the recruitment process takes four to six months.  The timing is critical because many recruitment efforts are valid for only a limited period and there are stringent requirements on when the LC application can be filed with the DOL.  Once all recruitment initiatives have been completed the US employer has 30 days to receive and consider applications made by US workers.  While the employer is not required to hire any of the candidates who apply for the job opening it must respond to applicants within a reasonable period of time and may disqualify only those US workers who do not meet the minimum positional requirements.  If an able, willing, qualified and available US worker applies for the job opening, the US employer may no longer proceed with the LC application.  If no such person applies for the job, the employer then submits its Application for Permanent Labor Certification (ETA Form 9089).  If the DOL approves the application, the employer may then file an immigrant petition to sponsor the foreign applicant for lawful permanent residence.

Employers understandably want to avoid the complex labor certification process, but LC through PERM is the only way many foreign nationals are eligible for permanent residence through employment.  (There are, of course, other employment-based routes for the multinational executive or manager or alien of extraordinary ability, which do not require labor certification.)

We hope that this short article has been informative.  However, it does not purport to cover all permutations of this issue and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation.  If you believe that legal advice would be helpful, you should consult a qualified US immigration attorney.

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