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The Perm Labor Certification Process

Labor Certification is a process by which an employer “tests” the U.S. labor market prior to offering a permanent position to a foreign worker (including a foreign scientists or doctors). Under the Program Electronic Review Management (PERM), as administered by the U.S. Department of Labor (DOL), the employer may submit a labor certification electronically after completing a recruitment plan to demonstrate that there are no qualified U.S. workers who are willing and available to take the job opportunity. The date of filing the PERM application will be the foreign worker’s priority date for purposes of applying for a Green Card .

If the PERM application is certified by the DOL, the employer may then submit with the U.S. Citizenship and Immigration Services (USCIS) an I-140 Immigrant Petition on behalf of the foreign worker seeking classification in the employment based second preference category. Once the I-140 petition is approved and the priority date becomes current, the foreign worker may apply for a Green Card either in the United States (an adjustment of status application) or abroad (through consular processing).

Employer’s Responsibilities

It is important to note that the employer must assume certain responsibilities and costs in embarking on the labor certification process. First, the employer is attesting that it has the intention to hire on a permanent basis the foreign scientist or doctor at the prevailing wage, as defined in the DOL‘s regulations. Generally, the prevailing wage is the average wage earned by workers in the same occupation in the area of intended employment. As the prevailing wage varies from region to region, the employer is required to obtain a prevailing wage determination from the State Workforce Agency (SWA) as part of the pre-filing process.

Second, the employer is required to assume the costs associated with the labor certification process. These costs include expenses for the required advertisements as well as the attorneys’ fees incurred for legal services associated with the filing of the PERM application.

PERM Recruitment Requirements

Under PERM, the employer is required to undergo and document certain recruitment steps. The regulations require employers to perform the following steps within 6 months prior to filing the labor certification application under PERM:

  1. Print Ads: The employer is required to place an ad on 2 different Sundays in a newspaper of general circulation in the area of intended employment. These ads must include sufficient information to apprise U.S. workers of the job opportunity. To achieve this, the regulations specify what information must be included in these ads.
  2. Placement of a Job Order with the SWA: The employer must place a job order with the SWA serving the area of intended employment for a period of 30 days.
  3. Notice of Filing: If the employer has entered into a collective bargaining agreement with a union representing employees in the occupation for which the labor certification is filed, the employer must provide notification to the union representative of the job opportunity. If the employer is not unionized, the notice must be posted for 10 consecutive business days at the employer’s facility at a conspicuous place between 30 and 180 days before the filing of the PERM application. The regulations list the information that must be included in this notice. Moreover, the employer must post this notice in “any and all in-house media” if such media is normally utilized to by the company to recruit individuals for similar positions.
  4. Additional Recruitment Steps: In addition to the above mandatory steps, the employer must select three more recruitment steps:
  • Employers’ Web Site
  • Job Search Web Sites (other than the employer’s web site)
  • Career/Job Fairs
  • On-Campus Recruitment
  • College Campus Placement Offices
  • Trade or Professional Organizations/Publications
  • Private Employment Firms
  • Employee Referral Programs with Incentives
  • Local and Ethnic Newspapers
  • Radio and Television Advertisements

Although the employer does not submit supporting documentation with the PERM application, the employer must ensure that documentation confirming the recruitment efforts and notice posting is retained. The employer must also ensure that all resumes received are reviewed promptly, and that appropriate action is taken within a reasonable amount of time. The employer must document the legitimate business reasons explaining why each applicant was rejected.

Why should a physician pursue labor certification over a National Interest Waiver?

The Labor certification process has the potential to allow the physician to obtain lawful permanent residence more expeditiously than the National Interest Waiver process. If a scientist or doctor requests a National Interest Waiver based on service in a medically underserved area or a VA facility, the scientist or doctor must complete the five year commitment in order to be approved for lawful permanent residence. Because Labor certification streamlined the labor certification process, the employer may be able to complete the recruitment process fairly quickly. As a result, the time that the employer spends satisfying the pre-filing requirements may potentially be shorter than the time that it may take to gather all of the necessary documentation to support a National Interest Waiver. Finally, the standards for completing the labor certification and obtaining approval for the I-140 petition based on the certified Labor certification application may be easier to satisfy than the requirements for a National Interest Waiver. Although an employer is not permitted to continue with a Labor certification application if a qualified U.S. worker is available and willing to accept job opportunity, an employer generally will not face this problem as employers usually find that U.S. workers are unavailable before they decide to hire foreign workers.


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If I obtained a J1 waiver can I immediately apply for permanent residency?

If a scientist or doctor’sJ-1waiver was granted based on a sponsorship by an Interested Government Agency or based on waiver-program”>Conrad 30 (or State 30), the scientist or doctor must ensure that he or she completes his or her three year commitment to provide services in an underserved area. If this commitment is not fulfilled, the two-year home country residency requirement is reinstated, and the scientist or doctor will not be eligible for lawful permanent residence.


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Do I have any other options other than PERM or a National Interest Waiver?

If the physician has exceptional or extraordinary ability in his field, he or she may consider submitting an I-140 petition seeking classification in the employment based first preference category as a foreign national of extraordinary ability or second preference category as a foreign national of exceptional ability. However, the immigration regulations provide particularly high standards for these classifications and the scientist or doctor and his or her prospective employer must be mindful of the documentation that will be required to establish eligibility for these classifications. The USCIS has in recent years scrutinized these petitions very heavily.

A scientist or doctor who is teaching at a University may potentially be sponsored by the educational institution. Under Labor certification, the University has the option of submitting a labor certification application pursuant to “special handling” requirements, which include recruitment procedures that are different from the regular procedures for recruitment of professional workers. An I-140 petition for outstanding researchers.


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When should I apply for PERM?

PERM applications can only be submitted by the employer. As a result, it is in the physician’s best interest to find an employer or coordinate with an existing employer to develop long term immigration strategies. Because of recent retrogression in certain employment based preference classifications, early filing of PERM applications is imperative for purposes of securing a priority date. By planning appropriately, the scientist or doctor will have more flexibility in the immigration process.


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To learn more about how PERM affects you, contact our office at (916) 613-3553 or send us an email now.