Frequently Asked Questions for Labor Certification/PERM Process

A foreign person offered permanent employment in the U.S. who does not qualify for an exemption must obtain Alien Employment Certification—commonly called labor certification—from the U.S. Department of Labor (DOL). A permanent labor certification issued by DOL lets an employer hire a foreign worker to work permanently in the United States.

In most EB-2 and EB-3 cases, the employer must obtain “labor certification “ from the DOL for the foreign national.

The date DOL receives the labor certification application is the filing date. USCIS and the Department of State use it as the priority date for I-485 filing.

The determinations are based on:

1. Whether U.S. workers who are able, willing, qualified, and available are insufficient for the position and/or
2. Whether hiring a foreign person will adversely affect the wages or working conditions of similarly employed U.S. workers; and
3. Whether the employer has satisfied the procedural requirements of the regulations.

“Lawful U.S. workers “ means U.S. citizens, permanent residents, asylees, and refugees.

On March 28, 2005, the DOL (U.S. Department of Labor) streamlined labor certification under a system called Program Electronic Review Management (PERM). Employers are now encouraged to file through PERM.

An employer that applies for labor certification under PERM after March 28, 2005 must file the new ETA Form 9089 under the PERM regulation.

An employer that applies for labor certification under PERM after March 28, 2005 must file the new ETA Form 9089 under the PERM regulation.

A complete application details the job duties, educational requirements, training, experience, and any special skills the work requires, and outlines the foreign worker's qualifications. The employer must also enter on the ETA Form 9089 the information NPWC provides: the prevailing wage, the prevailing wage tracking number, the SOC code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

Yes. The offered wage must equal at least 100% of the prevailing wage. No deviation is allowed.

Yes. A request for review may be filed within 30 days of the determination.

An employer must take care when setting minimum requirements. They must be normal for the occupation and cannot exceed what the worker possessed when hired, nor be tailored to the foreign worker's particular skills and qualifications.

Yes, but the employer must document adequately that the requirements arise from business necessity.

An employer must retain supporting documents for five years.

Mailed applications must reach the NPC bearing the original signatures of the employer, the foreign worker, and the preparer, if any. Electronically filed applications must be signed immediately by those same parties once ETA issues the labor certification; otherwise they are not valid.

1. the employer must register online in the PERM system.
2. before filing ETA Form 9089, the employer must request a prevailing wage determination from the National Prevailing Wage Center (NPWC).
3. the employer must complete the mandated recruitment steps (discussed below) before filing through PERM.
4. the employer may file Form 9089 electronically, attesting that it has completed the required PERM recruitment and meeting various other requirements, within 180 days of the earliest recruitment step.
5. the PERM system automatically accepts or denies the application. The initial review also includes a sponsorship check, in which DOL staff contact the employer by email or phone to confirm that a job is being offered to the foreign worker.
6. even if the system does not deny the application, DOL may select it for audit or supervised recruitment; the agency applies that scrutiny to both problematic and randomly chosen applications.
7. if the application has not been selected for audit and the sponsorship check is complete, it goes to an analyst for final review. The analyst verifies that the application contains no errors or inconsistencies and presents no issues warranting an audit. With no rule violations and nothing to justify an audit letter, the DOL analyst certifies the application, returns it to the employer, and issues a labor certification.

Employers may send paper applications to the Atlanta NPC. The address and contact details appear on the DOL Contact Information page.

In some situations the PERM system denies a filing automatically, without review by an adjudicator. Common reasons include:

1. the prevailing wage determination from the SWA has expired;
2. the job order placed with the SWA ran for fewer than thirty days;
3. the application is submitted less than thirty days after the job order, job posting, or last recruitment step is completed; or
4. the ETA Form 9089 lists recruitment that took place outside the 180-/30-day recruitment period.

Supporting documentation may not be filed with the ETA Form 9089, but the employer must supply it if the application is selected for audit or if the Certifying Officer requests it.

DOL will not disclose its audit criteria so that it can change them when needed.

If the application is not audited, approval generally arrives within 3 months. Many applications have been audited, causing delays of over two years. PERM was designed to streamline labor certification, yet the program is again mired in delays and backlogs, especially for audited cases.

An employer must place two Sunday advertisements for the position and, for professional positions, complete three additional recruitment steps. It must also place a 30-day job order with the State Workforce Agency (SWA), obtain a prevailing wage determination from the SWA, and post a job notice internally for 10 days. Previously qualified laid-off workers must also be considered if the application is filed within 6 months of a layoff of a qualified worker in the same or a related occupation.

Mandated recruitment must take place more than 30 days and fewer than 180 days before filing.

Labor certification requires a test of the labor market, carried out through newspaper advertisements and other recruitment, plus an internal posting and a job order on a DOL job site. The employer must evaluate every response carefully and in good faith, and may reject applicants only for lawful, job-related reasons.

The employer must use the professional-occupation standards if the occupation appears on the list published in Appendix A to the preamble of the final PERM regulation; those occupations normally require a bachelor's or higher degree. For any occupation that does not normally require such a degree, the employer may recruit under the nonprofessional requirements. Employers may always conduct more recruitment than the regulations require.

Yes. If a labor certification is denied or revoked, the employer may request review by filing a written request with the Board of Alien Labor Certification Appeals (BALCA).

A labor certification is only the first step in the permanent resident process toward the “green card. “ Once DOL certifies the application, it must go to the USCIS service center with a Form I-140, Immigrant Petition for Alien Worker. The foreign national then files I-485 to adjust status. Only after all these steps may the foreign national obtain a green card and begin working.

A certification is valid for 180 days and expires if it is not submitted to USCIS within that period.

Yes. Certifying officers may revoke an approved certification for fraud, misrepresentation, obvious errors, or other grounds or issues tied to the labor certification process.

Yes. Under Schedule A, physical therapists and professional nurses are exempt from most labor certification requirements. Certain persons of exceptional ability are also exempt.

Yes. Labor certification is required only for individuals applying under EB-2 and EB-3. Individuals who qualify under EB-1, EB-4, and EB-5 do not need one. Applications seeking a national interest waiver of the job offer requirement in the employment-based second preference also do not require labor certification.

PERM charges no application fee.