The PERM labor certification process is a mandatory step for many employment-based green card applications in the United States. Understanding this requirement is crucial for both employees and employers. Continue reading for more information and contact a skilled Queens employment immigration lawyer today.
What is PERM Labor Certification?
PERM (Program Electronic Review Management) is the electronic system used by the U.S. Department of Labor (DOL) to process labor certification applications required for many employment-based green cards. It is typically the first major filing step in the process for many U.S. employers looking to sponsor a foreign national for permanent residency through employment-based visas, more specifically, the EB-2 and EB-3 categories.
The DOL administers these certifications with the purpose of protecting the U.S. labor market. Before an employer can sponsor a foreign worker, they must demonstrate that there are no qualified, willing, and available U.S. workers for the specific job being offered and that employing the foreign worker will not adversely affect the wages and working conditions of other U.S. workers.
This requires the employer to conduct a series of mandatory recruitment efforts, including placing job orders with state workforce agencies, advertising in newspapers or professional publications, and posting notices at the worksite. The employer must define the minimum job requirements and offer a prevailing wage, as determined by the DOL.
Once the recruitment phase is complete and no qualified U.S. workers have been found, the employer submits ETA Form 9089 (the Application for Permanent Employment Certification) electronically to the DOL. If approved, the certification confirms that the statutory requirements have been met, allowing the employer to proceed with filing the Immigrant Petition for Alien Worker (Form I-140) with U.S. Citizenship and Immigration Services (USCIS).
Who Needs a PERM Labor Certification for a Green Card?
The requirement for a PERM labor certification generally applies to most foreign nationals seeking permanent residency through employment in the EB-2 and all EB-3 preference categories, with the exception of National Interest Waiver applicants. This includes professionals, skilled workers, and other workers, where the employer must demonstrate that no qualified U.S. workers are available before sponsoring the foreign national.
However, several employment-based green card categories are exempt from the PERM process entirely because they are considered to be in the national interest or have specific requirements that bypass the labor market test. These include:
- EB-1 category: First preference workers such as those with extraordinary ability, outstanding professors/researchers, and multinational executives/managers.
- EB-2 category National Interest Waiver (NIW): Applicants who qualify for an NIW do not require labor certification.
- EB-4 category: Special immigrants, such as religious workers.
- EB-5 category: Immigrant investors.
Essentially, if an immigrant is pursuing a green card through a standard job offer that falls under the general professional or skilled worker classifications, the employer must first successfully complete the PERM labor certification process. This step is crucial for ensuring compliance with U.S. labor protections before the petition can move forward.
