What is a PERM Labor Certification?
The permanent labor certification program (or PERM) is run by the U.S. Department of Labor’s (DOL’s) Employment and Training Administration (ETA). Its primary purpose is to assess whether the hiring of a non-U.S. citizen employee would prevent equally capable U.S. workers from procuring similar positions. In the course of its assessment, ETA evaluates whether recruiting a non-citizen would have detrimental effects on the working conditions or wages of U.S. workers employed in a similar field.
Employers looking to hire a non-U.S. citizen must first obtain a PERM certification before they can submit a petition to U.S. Citizenship and Immigration Services (USCIS) for an employment-based visa (such as an EB-2). Once an employer obtains a certification, they can proceed to filing USCIS Form I-140 (officially called the, “Immigrant Petition for Alien Workers”). In reviewing the petition, USCIS must determine:
- Whether the job in question is equivalent to the job assessed by ETA
- And whether the non-citizen worker is qualified to execute the duties of the intended position
But before the employer can get as far as Form I-140, they must first make their case with the U.S. Department of Labor. In the following guide, we’ll discuss the process for obtaining a PERM certification:
To obtain a permanent labor certification, employers must file Form 9089 (officially called the “Application for Permanent Employment Certification”). The PERM application may be filed in several different ways, depending on the circumstances. In this section, we will focus on the “basic labor certification process,” as outlined in § 656.17 of the Code of Federal Regulations (CFR) and in the instructions for Form 9089.
According to Federal Regulations (CFR § 656.10 (c)), in order to apply for a permanent labor certification, an employer must attest to the following:
- That the job listing was made available to U.S. workers
- That the wages offered to the prospective employee are greater than or equal to the “prevailing wages” for the given field
- Here, “prevailing wages” refers to either the wages set forth by a relevant collective bargaining agreement (CBA) or the average wages for employees in a similar field (see CFR § 656.40).
- To meet this condition, the employer must request a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA) for the relevant state. A list of SWA offices can be found on the DOL website.
- That the employer is able to put the prospective employee on payroll either before or on the day of their arrival in the United States
- That any U.S.-citizen job applicants have been denied for lawful reasons
- That the wages are not dependent on bonuses, commissions, or financial incentives of any kind
- Unless the employer can ensure that the prospective employee will continue to earn a wage greater than or equal to the “prevailing wages” mentioned above
- That the employer has enough money to actually pay the promised wages
- That, in making this job offer, the employer did not discriminate based on age, sex, religion, race, creed, color, nationality, disability, or citizenship
- That the job in question did not become available because of a strike or labor stoppage
- That the working conditions and terms of employment meet any relevant legal standards
- Including all Federal, state, and local statutes
- That the job in question is a full-time, permanent position
- That the employer is not the same person as the non-U.S.-citizen
In addition to meeting these basic requirements, the employer will have to conduct certain “recruitment steps” prior to filing their application (as indicated in CFR § 656.17). If the job opening is for a “professional occupation” — in which case the job applicant must have at least a bachelor’s degree, or equivalent experience, to be hired — the employer must, at a minimum, place a job order with SWA for at least 30 days, print at least 2 advertisements in 2 separate Sunday editions of a popular newspaper, and select 3 additional recruitment methods from the following list:
- Advertisements on Television or Radio
- Local and ethnic newspapers
- Job listings on the business’ website
- Job fairs
- University campus recruitment
- Trade organizations
- Recruitment agencies
- Job search sites, like Indeed or Monster
- Incentivized employee referrals
- College campus placement programs
For “nonprofessional occupations,” the employer must place a job order with SWA and print 2 newspaper advertisements. All the recruitment activities must take place during the 6 months leading up to the filing date — but no less than 30 days prior.
Note: 1 of the 3 additional recruitment methods (from the list above) may take place within 30 days of filing, but this is the only exception.
The employer will need to give advance notice that they will be submitting the PERM application. This notice should be documented and given either to the union representative of any current employees filling similar roles or, if no such representative exists, to the workers themselves at their place of employment. The notice should meet the following conditions:
- It must be given anytime between 30 and 180 days prior to submitting the PERM application.
- It must contain the wage offered to the prospective employee — and that wage must exceed the prevailing wages of the given field, as determined by SWA.
- It must contain the address of the Certifying Officer handling the application.
- It must state that anyone may send proof pertaining to the PERM application directly to the Certifying Officer.
- It must state that a PERM application will soon be filed.
Once the above-mentioned requirements are met, and notice is given within the appropriate time frame, the employer may start filling out the permanent labor certification application.
To obtain a PERM certification, employers will need to file ETA Form 9089. They can submit this form either online or through the mail.
If using snail mail, the employer, the non-U.S. citizen beneficiary, and the person preparing the application should sign the form before sending it to the DOL processing center. If submitting online, they will need to sign the certification as soon as they receive it. For auditing purposes, all paperwork gathered during the application process should be kept for a minimum of 5 years following the submission of Form 9089.
In order to successfully obtain PERM approval, and to avoid any unnecessary audits, the employer must be sure to fully complete the application in an honest and consistent fashion. To that end, it may be helpful — for whoever is completing the form — to gather some basic information ahead of time, including:
- The full legal name and address of the business’ main office or headquarters
- The total number of employees
- The year the business began
- The employer’s 9-digit Employer Identification Number (EIN)
- The North American Industry Classification System (NAICS) code
- This can be found on the NAICS website.
- Contact information for the business’ main point of contact, including email and phone number
- This must be different than the attorney’s contact information, which may also be provided elsewhere on the application
As mentioned above, in the “Requirements” section, the employer will need to request a PWD from the appropriate SWA office — and they should do this at least 150 days prior to filing. The person completing the PERM application will use the PWD to provide information such as the following:
- The prevailing wage tracking number (if given)
- The Standard Occupational Classification (SOC) code
- The code should refer to the occupation entered on the initial PWD
- The prevailing wage rate given by SWA
- The source of the prevailing wage. Sources include:
- Occupational Employment Statistics (OES)
- Collective Bargaining Agreement (OBA)
- McNamara-O’Hara Service Contract Act (SCA)
The employer should be sure to document the recruitment process and retain information regarding the job itself — including the duties and hiring requirements. The person completing the form will need to answer questions related to the following:
- The recruitment methods used by the employer
- The start and end dates of the SWA job order
- The names of the newspapers containing the job advertisements
- The dates of all recruitment events (if applicable)
- The dates of any job listings on sites like Indeed and Monster (if applicable)
- Whether the employee will need to speak more than 1 language to do their job
- Whether the employee needs more than a high school diploma
The employer will have to provide details regarding the prospective non-U.S. citizen employee, including their address, phone number, and information regarding their work experience. And if someone other than the employer is preparing the application, they must provide some basic information about themselves, including their name, job title, and email address.
Once the Form 9089 is complete, and all the above requirements have been satisfied, the employer may submit their application.
As of Nov. 30, 2021, the average processing time for a PERM application is 158 days. It should be noted, however, that PERM processing times can vary significantly depending on the situation. For a more thorough breakdown, visit the DOL website.
If the employer wishes to increase their chances of a quick turn-around, they can submit the PERM application using the Permanent Online System. Using the handy PERM tracker, they can continually keep tabs on the progress of their case. As indicated in the PERM Online User Guide, filing the petition electronically comes with a number of benefits, including:
- Faster PERM processing times
- Being able to track the PERM application
- Retrieving copies of previously submitted 9089s
- Quick confirmation of PERM status
- Being able to quickly reuse information on multiple applications
This is especially useful if the employer plans on filing more than one Form 9089.
While there’s no filing fee for Form 9089, there are a number of PERM-related costs. Employers may, for instance, want to hire an attorney who can prepare all the paperwork and provide counsel throughout the process. Lawyer fees may vary, but employers can expect to pay, at a minimum, between $2000 and $6000.
The employer will also need to cover all expenses related to recruitment. This means they’ll have to pay for 2 separate print advertisements, which can cost around $500 per ad. This price can vary depending on a number of factors, including the circulation of the newspaper, the size and color of the advertisement, and the location of the news outlet.
In addition to these PERM-related costs, the employer will have to cover all filing fees for any forms filed with USCIS. The fee for Form I-140 — which is to be filed by the employer on behalf of a green card beneficiary — is $700.
These costs don’t include any of the additional overhead, or other incidental fees, associated with the hiring process.
Once the employer receives the certification, they can then begin filing USCIS Form I-140, effectively commencing the green card process for the non-U.S. citizen beneficiary.
The petitioner must submit I-140, together with the permanent labor certification (if required), within 180 days following the date of PERM approval. Otherwise, the certification will expire, and they will need to go through the DOL filing process again. Unless otherwise stated by USCIS, a Form I-140 without the PERM application — and all the necessary signatures and stamps — will be denied.
In reviewing the petitioner’s I-140, USCIS will evaluate whether the non-U.S. citizen beneficiary was sufficiently qualified for the position when the PERM application was first submitted. Qualifications will vary depending on the type of visa sought by the green card applicant. One common type is the EB-2 visa.
An applicant seeking an EB-2 visa — short for Employment-Based Immigration: Second Preference — must fall into 1 of 3 categories:
- Advanced Degree
- In this case, the beneficiary must have a bachelor’s degree (or equivalent) and 5 years of post-graduate experience in the field. A doctoral degree may also be required if it is customary.
- Exceptional Ability
- The beneficiary must have “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” and they must provide proof that this is the case.
- National Interest Waiver (NIW)
- If it can be shown that the applicant has exceptional ability and that their skills would serve the national interest, then the beneficiary may submit their own I-140 without a sponsor. They may, in addition, file their own labor certification directly with USCIS, bypassing altogether the rigmarole of the DOL PERM application process.