What Is the PERM Labor Certification Process for Foreign Workers?

Which Permanent Foreign Workers Need Labor Certification?

The United States annually grants immigrant visas for noncitizens based on employment skills. For many employment-based petitions, the Department of Labor (DOL) requires labor certification. Labor certification formally documents your position and its qualifications. The DOL uses this to confirm that a foreign worker isn’t limiting opportunities for U.S. citizens. Those applying for employment-based green cards fall into one of the following groups.

EB-1

The First Preference EB-1 category includes all foreign workers with extraordinary abilities. These abilities may be in the sciences, arts, education, business, or athletics. This category includes outstanding professors and academic researchers. Multinational executives and managers are also eligible. With EB-1 status, you will not need to provide labor certification.

EB-2

The Second Preference EB-2 category is for members of professional occupations. These foreign workers must have advanced degrees. This category includes workers with exceptional ability in the arts, sciences, or business. You’ll typically need labor certification to apply for this category. However, some applicants can get a National Interest Waiver (NIW) instead. An NIW waives the need for a job offer or labor certification. NIW applicants may self-petition instead of having their employer petition. U.S. Citizenship and Immigration Services (USCIS) will consider a few factors to determine your eligibility.

USCIS considers NIWs based on the following criteria:

• Your proposed endeavor has substantial merit and national importance.

• You are well-positioned to advance your proposed field.

• The United States benefits from waiving the need for a job offer and labor certification.

EB-3

The Third Preference EB-3 category includes professionals, skilled workers, and unskilled workers. Professionals are those with a U.S. bachelor's or foreign equivalent degree. This degree must be their standard job qualification. Skilled workers have a minimum requirement of two years of work experience, education, or training. Skilled workers must meet all qualifications on their labor certification. Unskilled workers are those who can perform unskilled, permanent labor. This group requires less than two years of training or experience.

All EB-3 workers perform jobs that U.S. workers weren’t available to complete. All three subcategories also require labor certification. You will also need proof of a permanent, full-time job offer.

EB-4

The Fourth Preference EB-4 category includes “special immigrants.” Special immigrants may include the following:

• Certain religious workers

• Retired U.S. Foreign Service employees

• Retired employees of international organizations

• Some classes of noncitizens

For more information, you should review USCIS’s list of those eligible for this status. Applicants to this category do not need to submit labor certification.

EB-5

The Fifth Preference EB-5 category includes business investors who make a specific contribution. If you invest $1.8 million or $900,000 (in a targeted employment area) in a new commercial enterprise employing at least ten full-time U.S. workers, you are eligible for this status. EB-5 applicants do not need to submit labor certification.

What Is Labor Certification?

The Employment and Training Administration (ETA) of the U.S. Department of Labor (DOL) oversees the permanent labor certification program, or Program Electronic Review Management (PERM). ETA officials use PERM to assess whether an employer may hire a non-U.S. citizen for a job. 

The employer must prove that hiring a non-U.S. citizen would not hurt the labor market for U.S. workers. Hiring a foreigner cannot affect the wages or working conditions of other U.S. workers in the same field. They must also prove that no qualified U.S. workers could fill the position instead. Usually, the DOL will approve or reject the labor certification application (LCA) within 45-60 days. However, processing time can sometimes take up to six months.

U.S. employers must have approved certification before submitting their Form I-140 immigrant petition for an employment visa to U.S. Citizenship and Immigration Services (USCIS). When USCIS reviews the petition, they assess whether the jobs described on the LCA and on the I-140 petition are consistent. They will also examine whether the non-U.S. citizen employee has the required qualifications for the position.

What To Expect From the Labor Certification Process

If you need labor certification, your employer must file Form ETA 9089: Application for Permanent Employment Certification. 

When an employer applies for labor certification, they swear by the following:

• The job opportunity is a full-time, permanent position.

• They are not the foreign national worker themselves. In other words, an employer cannot employ themselves to obtain immigration benefits.

• They made their job listing available to U.S. workers. They had a recruitment process for U.S. workers. They’ll need to provide proof of the recruitment steps they took.

• They’ll pay their prospective employee 100% or more of the “prevailing wage.”

  • In some cases, a collective bargaining agreement sets the prevailing wage. In other cases, the prevailing wage is the average wage of all employees in a similar position. 

  • Employers must request a Prevailing Wage Determination (PWD) from their state’s State Workforce Agency (SWA). Employers may find their SWA office on the Department of Labor (DOL) website. 

• They can put the worker on payroll before or on arrival in the United States.

• If the employer denied any U.S. citizen applicants for the position, the employer must swear that they rejected those applicants for lawful reasons.

• Wages are not dependent on bonuses, commissions, or any other incentive. This rule will not apply if the employer still pays the employee a wage greater than or equal to the prevailing wage.

• They have the money to pay the promised wages to their prospective employee.

• They did not discriminate against any applicants. Age, sex, religion, race, creed, color, nationality, disability, and citizenship did not influence hiring.

• They did not make the position available due to workers' labor stoppage or strike.

• Their working conditions are up to legal standards, including standards set out in federal, state, and local laws.

Employer Must Give Employees Advance Notice

PERM regulations mandate advance notice to employees. The employer must give notice to their employees before they begin the PERM process. They should notify any union representatives of their current employees in similar positions. Alternatively, they should notify their employees if there is no union representative.

Advance notice must conform to specific standards. Employers must give notice between 30 to 180 days before applying. The notice must include the wage the employer is offering their prospective employee. According to the SWA, this wage must exceed the prevailing wages of the field. The employer should also provide the address of the Certifying Officer reviewing the application. The notice should clarify that anyone can send evidence relating to the application to the Certifying Officer. Only after giving notice can the employer proceed with completing the application.

How To Complete and Submit ETA Form 9089

Employers may submit ETA Form 9089 online or by mail. 

• If they send the form by mail, the employer, foreign worker, preparer, and immigration lawyer (if applicable) must sign the form. Then, they need to mail it to the right DOL processing center. 

• If submitting the form online, these individuals do not have to electronically sign. However, they must all sign the certification immediately once they receive it from the DOL. The copy sent to USCIS must show all of these signatures. 

Employers will also need to enter details about the foreign worker. This may include their address, phone number, and past work experience information.Employers will also need to enter details about the foreign worker. This may include their address, phone number, and past work experience information.

The DOL advises keeping any paperwork used to fill out the application for the next five years. All information provided on the application should be honest, accurate, and consistent. Employers will provide information such as the business’s legal name, size, and founding date. They’ll also need to provide their Employer Identification Number (EIN), North American Industry Classification System (NAICS) code, and contact information.

What Happens After the Employer Submits the Application?

Once the application is fully complete, the employer may finally submit it. If the DOL approves the PERM application, the foreign worker may proceed with applying for the appropriate EB status. With EB status, a foreign worker has a pathway to an immigrant visa and permanent residency. Permanent resident status provides valuable immigration benefits, such as allowing green card holders to work freely in the United States without needing a work permit.