Labor Certification/Perm

**What Is a Labor Certification?**A labor certification is a legal document that U.S. employers must complete in order to hire a foreign national for a permanent position in the United States. It requires employers to go through an extensive process of proving that there is no American worker available for a specific position. According to USCIS and the Department of Labor, “the labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers.”

What is PERM?

A Program Electronic Review Management Labor Certification, or PERM, is the first step in the process for obtaining an employment-based green card that will allow a foreign worker to live and work in the U.S. permanently. Two categories of employment-based visas that require labor certifications are EB-2 and EB-3. Before an employer can file a petition for a foreign worker, they must first obtain an approved labor certification from the Department of Labor (DOL) by filing ETA Form 9089. The employer must be able to show that they intend to pay the appropriate prevailing wage for the position in the geographical area. Moreover, it must be shown that employment of the foreign worker will not adversely affect the working conditions or wages of similarly employed domestic workers.

If the employer’s PERM application is approvable, it will be certified by the DOL. This will attest to the United States Citizenship and Immigration Services (USCIS) that there are no sufficient U.S. workers available who have the qualifications, willingness, and availability to perform the job offered at the prevailing wage for that occupation. The employer will then need to file Form I-140, Immigrant Petition for Alien Worker, with the certified PERM.

Important considerations for employers

Employers must be aware of several important factors when filing a PERM labor certification on behalf of a foreign worker. These include the following:

• The PERM labor certification must be valid when the foreign worker receives his or her green card, which could be many years from now
• Employers must ensure that recruiting a foreign worker would not have detrimental effects on the working conditions or wages of U.S. workers employed in a similar field
• Employers must also ensure that the foreign worker is qualified to execute the duties of the intended position, in order to avoid a denial of the PERM or the I-140 petition

If you are a U.S. employer wishing to consult an expert PERM labor certification attorney, look no further than the U.S. Immigration Law Counsel®. We can provide valuable guidance on navigating the PERM process and understanding labor certification processing times.

Frequently Asked Questions

What happens if my PERM labor certification is denied?

If the labor certification/PERM is denied, your employer may request reconsideration by the Department of Labor’s certifying officer or seek review by the Board of Alien Labor Certification Appeals (BALCA).

What if my PERM is approved but my Form I-140 petition is denied?

Your employer may have the option to appeal the denial or file a new Form I-140 petition with additional supporting evidence, based on the applicable filing requirements.

What is the Prevailing Wage?

The prevailing wage is the wage determined by the Department of Labor for a particular position based on the occupation, job requirements, and location. The employer must offer at least the required prevailing wage.