A US employer wishing to sponsor a foreign worker for a green card must complete the process of labor certification, or PERM. The process requires the employer to complete several tasks in order to ensure the Department of Labor (DOL) that no willing and qualified American worker applied and was denied the position in favor of the foreign worker. Essentially, the employer must circulate several advertisements for the prospective job through different sources, along with a few other tasks that include submitting forms to the DOL and the US Immigration and Citizenship Services (USCIS).
The labor certification process is multifaceted and can be difficult, involving strict time frames and rules for the advertisements. It is the sole responsibility of the employer to pay for these advertisements and any other PERM associated fees. The foreign worker may not contribute in any way.
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The first step requires the employer to put forth a job order with the given state’s workforce agency as well as two Sunday advertisements in a newspaper in the area of intended employment that reaches the general population. The newspaper ads must contain the name of the employer, instructions for applicants to send resumes, a description of the job that is adequately specific, and an indication of the geographic location of the job including any travel required, if applicable.
The ad must run on two consecutive Sundays. In terms of the requirements for the job order, all states vary. Often, states require employers to create free web accounts in order to place job orders. The employer should do an internet search to determine what is required by appropriate “workforce agency” or “department of labor” in the state of the prospective job. Regardless of the specific state requirements, the completed job order must run for 30 consecutive days, including weekends.
Additionally, the employer has to place a total of three additional advertisements and a “posting notice.” The posting notice is to alert the employer’s current workers that the employer is filing a labor certification. It must be posted at the place of business for ten consecutive days, not including weekends. They should make notation of the posting and the number of responses it received.
For the three additional advertisements, the employer may choose from ten available options. These do not have a time requirement. For example, should the employer choose the company website option, the advertisement could run for just one day, so long as there is record of it. They must, however, contain the same information as the mandatory newspaper advertisements.
The second step is to, while the advertisements are running, review any resumes sent in for the position. If there is nothing that reasonably disqualifies an applicant in their resume alone, the employer must conduct an interview. There must be clear and detailed records of all resumes and candidates considered, as well as the reasons for rejection.
The third step prior to labor certification approval requires that the employer complete ETA Form 9089 and submit it to the DOL. The form asks for information regarding the recruitment process and the job opportunity (prerequisites, title, duties, position), as well as information about the foreign worker’s education and prior work experience. The employer must wait at least 30 days from when the job order or job posting expires to submit the ETA form (whichever expires latest).
After DOL approves the labor certification, the employer must submit an I-140 visa petition within 180 days. The visa petition must be approved by USCIS in order for the foreign worker to obtain a green card.
This page is divided into the following subtopics:
- Hire an Attorney Who Will Fight for You
- Overturning the Denial of a PERM Application
- Getting a PERM Denial Reversed
- Software Developer: “Our First PERM Approval”
- Permanent Labor Certification (USDOL)
- Prevailing Wages (USDOL)
- Foreign Labor Application Gateway – FLAG (USDOL)
- Online Registration
- Guide to Using OFLC’s Search FAQs (USDOL)
- Online Wage Library – Foreign Labor Certification Data Center
- PERM Processing Times (USDOL)
- Labor Dept. Issues Revised Rule Increasing H-1B and PERM Wage Minimums (January 2021)
- DOL Criteria on PERM Audit Review and Supervised Recruitment (3-19-13)
- DOL ETA/OFLC Atlanta National Processing Center Standard Operating Procedures (12-10-10)
- PERM Processing Slows Dramatically (9-30-09)
- DOL Final Regulation re: Substitution of Labor Certificates (5-17-07)
- PERM Statistics (March 28,2005 – March 2, 2007)
- Letter Requesting Remand of BALCA PERM Appeals in light of decision in
- Matter of HealthAmerica – BALCA Case No. 2006-PER-1 (7-18-06)
- PERM Users Guide, Version 1.00 – 50 Pages (4-26-05)
- PERM Regulations – (12-27-04)
- Summary of PERM Regulations – (AILA)
- iCert Portal iCERT Prevailing Wage Quick Start Guide
- iCert Portal User Guide
- Announcing the New iCERT Portal System for Temporary and Permanent Labor Certifications (4-15-09)
- iCert External User Guide, Version 1.0 (April 2009)
- iCert LCA Module External User Guide, Version 1.0 (April 2009)
- DOL’s 13th FAQ (October 2, 2016)
- DOL’s 12th FAQ (October 12, 2010)
- DOL’s 11th FAQ (August 9, 2010)
- DOL FAQ: Appeals (December 1, 2009)
- DOL FAQ: Change of Address and Update Legal Representation with Department of Labor (December 1, 2009)
- PERM Specialization FAQ #1 (April 3, 2008)
- DOL’s 10th FAQ (May 9, 2007)
- DOL’s 9th FAQ (November 29, 2006)
- DOL’s 8th FAQ (March 20, 2006)
- DOL’s 7th FAQ (February 21, 2006)
- DOL’s 6th FAQ (February 14, 2006)
- DOL’s 5th FAQ (August 8, 2005)
- DOL’s 4th FAQ (June 1, 2005)
- DOL’s 3rd FAQ (May 4, 2005)
- DOL’s 2nd FAQ (April 7, 2005)
- DOL’s 1st FAQ (March 3, 2005)
- Mandamus Litigation Against DOL to Address Delays in Prevailing Wage Determinations and Labor Certifications (11-05-16)
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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