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Labor Certification

PERM stands for Program Electronic Review Management and replaces the earlier method of getting labor certification and as of March 28, 2005 all labor certifications are filed under PERM. The labor certification application application filed under PERM is generally processed (adjudicated) within 45 to 60 days compared to months it took under the previous process.

PERM requires the employers to conduct recruitment before filing their applications. Employers are mandated to place the 30-day ad directly with the State Workforce Agency (SWA), i.e., through the input system on-line managed by the SWA personnel. To be sure that the placement of the ad on the site is directly through the SWA, and not independently, the employer must register with the SWA and obtain a state ID user name, password, and/or registration number. Once the ad is placed, the job order will be processed the same as any other job order.

The requirements and procedures are complex and can be very confusing. PERM labor certification has several requirements, including:

  • The employee must be hired by the domestic employer as a full-time employee
  • The position must be a bona fide job opening available to U.S. workers
  • The job requirements must be customary to U.S. requirements for that occupation and not altered to conform to the employee’s foreign qualifications
  • The pay rate for the job must be at least the common amount for that type of occupation

The applicant for labor certification must file ETA Form 9089, with the Department of Labor as well as the forms I-140 and I-485 with the US Citizenship and Immigration Services.

The Department of Labor requires employers to ensure the job cannot be filled by a qualified and available US worker. The employer is required to advertise more than three days prior to filing the the application and must make at least three additional recruitment efforts within 30 days of the filing.

Exceptions to Labor Certification

The Department of Labor allows certain exceptions to the PERM labor certification requirement. If you fit into one of the following categories for preferential employment-based immigration, the process to work permanently in the United States does not require an ETA Form 9089.

  • First Preference ( EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
  • Second Preference ( EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
  • Third Preference ( EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
  • Fourth Preference ( EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
  • Fifth Preference ( EB-5 Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise, please see Lawful Permanent Residence through Investment. Permanent resident status is available to investors, either alone or coming with their spouse and unmarried children