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PERM Labor Certification

Sometimes employers in the current U.S. job marketplace would like to hire foreign nationals to work in their companies because they cannot find ready, willing and qualified employees in the United States to fill in the required job position within the company. The PERM (Program Electronic Review Management System) regulates the rules and regulations pertaining to the labor certification application process. The fundamental rule pertaining to the employers who file the labor certification application on behalf of the prospective employees is to show to the U.S. Department of Labor that they have completed good faith recruitment and could not locate any qualified U.S. workers who are willing and ready to take the job position offered. This is to assure that U.S. workers' wages and working conditions will not be replaced or affected.

PERM Labor Certification application is only applicable to EB-2, EB-3 categories and H-2 applicants. The Labor Certification application needs to be certified in order for the employer to be able to file the immigrant petition on behalf of the employee. Then the employee will be able to adjust status in the United States based on the visa availability according to the Visa Bulletin. In summary there are three stages to be completed before the prospective employee will be able to obtain permanent residency in the United States through labor certification and be able to work for the petitioning employer indefinitely in legal status.

Stage 1 – Recruitment and Labor Certification:

This stage is monitored and directed by the employer. At this stage the employer needs to conduct good faith recruitment in order to locate a qualified, ready and willing U.S. employee to take the position offered by the employer. There are specific and mandatory requirements for the recruitment process as listed in the PERM regulations. The employer also needs to undergo three additional advertisements if the job position offered is a professional occupation.

The mandatory advertisements include the following:

  1. Two Sunday print advertisements (with proper content as indicated under the PERM regulations) in a major newspaper in general circulation. The Sunday newspapers must be circulating in the area of the proposed job site.
  2. Job Order placement with State Workforce Agency for 30 consecutive days.
  3. Internal Posting at location of employment, and in a conspicuous area, for 10 consecutive business days.

At least three additional advertisement need to be placed from the following list in case the job position includes a professional occupation (meaning at least a bachelor's degree or higher is normally required for the position):

  1. Job Search Website in the internet
  2. Employer's Company Website
  3. Job Fair
  4. Private Employment Firm
  5. Trade or Professional Organization
  6. Employee Referral Program with Incentives
  7. On-Campus Recruiting
  8. Local and / or Ethnic Newspapers circulating within the region of the work site
  9. Radio and / or Television Advertisement
  10. Campus Placement Office

The employer is required to prepare a Recruitment Report regarding the resumes received and any applicants interviewed for the offered position during the recruitment. The employer needs to interview qualified applicants within a reasonable time after receipt of their resumes. This report is required to be kept by the employer for a period of 5 years in case it is requested by the U.S. Department of Labor (USDOL).

Upon completion of good faith recruitment by employer and an existence of proof that there are no qualified applicants to fill the position offered, the employer should file the Foreign Labor Certification Application online with the U.S. Department of Labor. The application should be submitted no later than 180 days after the initial advertisement, and not earlier than 30 days after the last recruitment step is completed. After careful review the USDOL will either certify the application or issue an AUDIT letter. If an audit letter is issued the employer is obligated to provide proof of completion of all the required recruitment materials as well as employer's recruitment letter.

Stage 2 – Filing of the I-140 Immigrant Worker Petition:

After the Labor Certification Application is approved by the USDOL, the employer has 180 days to file the I-140 Immigrant Worker Petition. It is strongly recommended for the I-140 petition to be filed as soon as the LC application is certified because the certified Labor Certification Application is valid for only 180 days. If the priority date is current for some nationals according to the Visa Bulletin under their specific categories (EB-2 or EB-3), then the I-140 petition can be filed concurrently with the I-485 Adjustment Application for the foreign national to obtain permanent residency. If the priority date for the petition is not yet current then the foreign national should wait for the priority date to become current and then apply for adjustment of status as indicated in Stage 3.

Stage 3 – Filing of the I-485 Adjustment of Status Application or Consular Processing Abroad:

The I-485 Adjustment of Status application (while in the United States) or consular processing abroad (at the consular office) can only be initiated upon the visa availability as indicated in the Visa Bulletin. This is determined by the priority date indicated on the I-140 petition which is also the filing date of the labor certification application. This date has to be current with the visa bulletin for the foreign national's appropriate preference category (EB-2 or EB-3) and the country of birth.

If the foreign national is applying for adjustment of status in the United States (assuming foreign national is in legal status at the time of the adjustment application or is INA Section 245(i) protected), he can also apply for a work permit to be able to work while the application is pending as well as for a travel document to be able to travel and paroled back to the United States as a result of the pending adjustment application. Upon approval of the adjustment application the foreign national will obtain the Green Card. The foreign national who obtains his Green Card through labor certification should work for the petitioning employer for an indefinite period of time.

 

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We do not represent the Department of Homeland Security or any legal entity. All content on this site is strictly for informational purposes meant to help you make an informed decision regarding you, or your loved ones immigration to the U.S. Be sure to consult our immigration attorney for any legal advice.

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