PERM: Labor Certification for Permanent Residence
The Most Common Green Card Path
Most foreign nationals seeking to obtain permanent residence through employment must have a permanent job offer from an employer who is willing to sponsor them. Before any immigrant petition can be filed, they must be the beneficiary of an approved application for alien employment certification.
The employment certification process demonstrates that there are no United States workers who are able, willing, qualified and available for the position being offered. It also ensures that employment of the foreign worker will not adversely affect the wages and working conditions of similarly-employed United States workers. The procedure for obtaining an approved employment certification is commonly referred to as PERM.
PERM may apply to several categories of workers. First, it may apply to workers in the EB-2 category with advanced degrees or exceptional ability whose work cannot qualify them for a National Interest Waiver. An advanced degree is defined as any degree higher than a Bachelor’s, or a Bachelor’s degree followed by at least 5 years progressive experience in the applicant’s field of specialization. In general, the government views “exceptional ability” under the EB-2 category as less difficult to prove than “extraordinary ability” under the EB-1 category.
PERM may also apply to the EB-3 category. This category covers many kinds of workers, including:
- Professionals with a U.S. Bachelor’s Degree or the equivalent;
- Skilled workers in positions requiring two years of training or experience; or
- Workers in positions requiring less than two years of education, training or experience.
Foreign nationals with Bachelor’s degrees will qualify as EB-3 professionals as long as their employers can demonstrate that such a degree is normally required for entry into the specified occupation. (Note: In both the EB-2 and EB-3 categories, exceptions to the labor certification requirement are available to some professionals in specific fields of employment via a “precertification” process).
The PERM process is an employment-based permanent residence option for individuals who are not eligible for any of the self-petitioning categories (EB-1A, EB-1B or EB-2 National Interest Waiver). The applicant needs only to demonstrate that he or she meets the minimum requirements for the position, rather than showing a level of accomplishments far above others in the field.
The PERM process is complex and lengthy, placing a substantial burden on the employer. An applicant is tied to the sponsoring employer. There is a substantial backlog in the EB-3 category for all countries and in EB-2 for China and India. This means that an individual with an approved immigrant petition may have to wait a number of years to enter the U.S. on an immigrant visa or to adjust status to permanent resident. Those waiting in the U.S. must maintain legal nonimmigrant status until they are eligible to file for permanent residence.
- The employer offers a full-time position to a foreign national and commits to paying him the “prevailing wage”.
- The employer submits an application to the Department of Labor (DOL) with a detailed job description and requirements.
- The DOL determines the prevailing wage based on the nature of the job and the workplace location.
- The employer posts a job notice on its premises, places job orders with the State Workforce Agency (SWA), runs advertisements and completes other required recruiting activities.
- The employer evaluates any resumes received and prepares documentation to submit to DOL in case of a recruiting audit.
- The employer files the ETA-9089 labor certification application with the DOL.
- The DOL reviews the ETA-9089 and issues certification.
- The employer files the I-140 Petition for Immigrant Worker with the approved labor certification, proof that the beneficiary met the job requirements on the date the PERM application was filed, and evidence of ability to pay the prevailing wage.
- When a visa number becomes available, the employee files an I-485 Adjustment of Status application, or applies for an immigrant visa if living abroad. The I-140 and I-485 can be filed concurrently if there is no visa backlog.
Timing It typically takes about 9-12 months for a U.S. company to complete the PERM process. However, If the case is selected for an audit by DOL, another 6-9 months may elapse before the labor certification is granted. Depending on the country and category, there may be no wait at all for visa availability (as is typical in EB-2 for all countries except China and India) or a wait as long as 20+ years (as in EB-3 for India).
The PERM employment certification process is the most common way for foreign nationals to gain permanent resident status. While there are many steps on the road to an approved I-140, and quite often a long wait for a priority date to become current, it is a well-established path offering a broad range of applicants the opportunity to attain their immigration goals.