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Labor Certification

Permanent Residence through Labor Certification (PERM)

There are three steps in the process of obtaining the permanent residency status through labor certification:

  1. Employer filing a permanent alien labor certification with the U.S. Department of Labor (DOL);
  2. Employer filing an immigrant petition for alien worker with the U.S. Citizenship and Immigration Services (CIS); and
  3. Foreign worker/employee filing an application to register permanent residence with the CIS.

Step one: Labor certification application

Labor certification is probably the most common method by which a U.S. employer sponsors a foreign worker for permanent residence. The labor certification is the first step of a three-step permanent residence process. To obtain a labor certification from the U.S. Department of Labor, the sponsoring company/employer must prove to the satisfaction of the Department of Labor that, after reasonable recruitment efforts, it has been unable to locate a minimally qualified U.S. worker willing to accept the position.

The qualifying criteria for filing a permanent alien labor certification application:

  1. The employer must hire the foreign worker as a full-time employee;
  2. There must be a bona fie job opening;
  3. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications;
  4. The employer should document that the job opportunity is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
  5. The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Recruitment procedures and requirements for filing a permanent alien labor certification application:

Recruitment: 
An employer filing labor certification application for professional positions will be required to place two Sunday ads in a newspaper of general circulation, or as an alternative to two Sunday ads, the employer may place one Sunday ad and one professional journal ad, AND place a job order for 30 days with the local State Workforce Agency (SWA), AND place the same ad in any three of the following:

  1. job fair;
  2. employer’s website’
  3. job search web site other than employer’s;
  4. on-campus recruiting;
  5. trade or professional organizations;
  6. private employment firms;
  7. an employee referral program;
  8. a notice of the job opening at a campus placement office, if the job requires a degree but no experience;
  9. local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and
  10. radio and television advertisements.

In addition, the employer must post notice of job opportunity for at least 10 consecutive business days internally. In addition to the printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.

Filing the petition:

The labor certification may be filed online (recommended) or by mail. The supporting documents will not be submitted but the employer must maintain supporting documentation for five years from the date of the filing in case of an audit, which may be generated by random selection or by a particular entry in the application.

Adjudication time:

The expected adjudication time is between 45 to 60 days.

Layoffs:

The employer is required to notify and consider workers it has laid off in the 6 months immediately prior to filing the application. The employer is required to notify and consider those laid-off workers in the occupation for which certification is sought or in a related occupation (defined as any occupation that requires workers to perform a majority of the essential duties involved in the job).

Step two: Immigrant petition for alien worker – using the labor certification to obtain approval of an immigrant visa petition

After obtaining a certified labor certification, the employer may use this certified labor certification to file an “Immigrant Petition for an Alien Worker” with the U.S. Citizenship and Immigration Services (CIS) on form I-140. The I-140 petition must include proof that the foreign national qualified for the position described in the labor certification and that the company had the ability to pay the wage offered in the labor certification from the time of filing the labor certification until the foreign national obtains permanent residence status. The evidence required to show the employer’s ability to pay the proffered wage include one of the following three: the company’s U.S. Corporation Income Tax Return, Annual Report for a public company, or audited financial statement(s) of the company for the required/applicable years.

Step Three: Filing adjustment application to obtain the permanent residence status by the foreign national

Once the I-140 immigrant petition is approved, the foreign national may apply for permanent residence status either by filing a Form-485 application for adjustment of status from within the United States, or through consular processing at a U.S. consulate outside the United States. In certain cases, the foreign national may concurrently submit his/her I-485 adjustment application with the employer’s I-140 petition.