Understanding the PERM process
PERM, or Program Electronic Review Management, is the Department of Labor’s labor certification system and is the first step in many employment-based permanent residency cases. Most EB-2 and all EB-3 green card cases require employers to first obtain a certified PERM labor certification before filing the I-140 visa petition and the I-485 Application for Adjustment of Status. The purpose of PERM is to ensure that foreign workers seeking permanent residency based on employment are not displacing equally qualified U.S. workers.
Who Needs PERM?
Not all employment-based immigrant visa petitions require the PERM process. Since PERM is costly, difficult and time-consuming, employers should make sure that an applicant is not eligible for a PERM-exempt category before moving forward with the green card process. The following categories require a certified PERM labor certification before an immigrant visa and/or application for adjustment of status can be filed:
- EB-2:All EB-2 categories except national Interest Waiver cases require PERM
- EB-3:All third preference employment-based Immigration petitioners require PERM
The following categories do not require PERM:
- EB-1: All EB-1 categories, including EB-1A extraordinary ability petitions, EB-1B outstanding researcher or professor petitions, and EB-1C Intra-Company Transferees for Multi-National Executives
- EB-2 National Interest Waiver petitions
- EB-4 Special Immigrants, such as religious workers and VAWA-based petitions
- EB-5 Investors
- Family-based petitions and Schedule A occupations
The 4 Steps in the PERM / Labor Certification Process
PERM consists of a number of steps, including a time-consuming and usually expensive recruitment process. Once an employer recruits for the offered position an application for labor certification can be submitted to the Department of Labor. PERM is complicated and time-sensitive. There are 4 steps in the PERM labor certification process.
Step #1: Determine the Minimum Requirements
- Determine what the minimum requirements will be for the PERM position. In order to begin this process, our firm usually sends out a Minimum Requirements Questionnaire and asks for a copy of the employee’s resume. Once the employer returns the completed Minimum Requirements Questionnaire to us, we will work with the supervisor to determine what the minimum requirements are for the position.
Step #2: File a Prevailing Wage Determination
- The second step is to file Form ETA 9141 with the Department of Labor (DOL) to determine the minimum (or prevailing) wage required for the position.
Step #3: Recruitment
- Once the prevailing wage is determined, the next step is to begin the recruitment process. During recruitment, our firm helps with required advertisements for the position in various newspapers and online job sites. The purpose of this step is to make the job available to any potentially qualified U.S. workers. The company must then conduct interviews of any potentially qualified U.S. applicants that apply for the position. This process takes roughly 60 – 90 days to complete, but could take longer.
Step #4: Electronically File the PERM/Labor Certification
- Once recruitment is complete and in compliance with Department of Labor regulations, an employer can file the PERM/ Labor Certification Form (ETA 9089) with the DOL. Once the PERM ETA 9089 form is electronically filed, there are four potential outcomes:
(a)The PERM / Labor Certification is certified without audit or supervised recruitment.
(b)The PERM / Labor Certification could be selected for a DOL audit, which will cause a delay. If this happens, our firm will prepare an audit response.
(c)The case could also be subjected to “supervised recruitment,” which would cause long delays and require a new recruitment, but this time with DOL supervision.
(d)The PERM / Labor Certification is denied, usually after an audit and/or supervised recruitment. There is an appeal process for a denied PERM.
Post-PERM Certification: Filing the I-140 and the I-485
The I-140 Visa Petition
- If the PERM is certified by DOL, the employer can file an I-140 petition. The I-140 visa petition can sometimes take months to adjudicate, although some categories allow for a premium process fee to assure a decision within 15 calendar days. I-140 petitions require documentation that the employer has the ability to pay the wage, in addition to other requirements. The government may issue a Request for Evidence with the I-140 which would cause additional delays.
The I-485 Adjustment of Status Application
- An I-485, Adjustment of Status application can only be filed when an applicant’s priority date is current. The priority date is the date either the PERM labor certification was filed or the date the I-140 was filed if the petition is exempt from the PERM requirement. Priority dates can take quite some time to come current, depending on the country of origin and the preference category of the employee (i.e. EB-2 vs. EB-3). Once the priority date comes current on a case, the employee can file the I-485 along with a work permit application. Dependent minor children and spouses can also file the I-485 and work permit applications at that same time.
We Can Help You With The PERM Process
At Becker & Lee LLP, business and employment-based immigration is one of our primary focus areas. Our attorneys have advised a range of employers with the PERM labor certification process, including insurance company, Silicon Valley tech companies, agricultural businesses, construction companies, and other start-ups and businesses.
Our PERM lawyers offer comprehensive representation to help increase chances of success in the application process. Contact our San Francisco law firm to learn more about your options.