Labor Certification Process

It is said that the very first step of applying for an employment-based lawful permanent residency (green card), is the filing of the “PERM” or the Labor Certification. While this is correct, the Labor Certification has multiple steps before being submitted and it is a complex process itself! We often refer to this as the “PERM” process or “filing the PERM”. PERM stands for “Program Electronic Review Management” System. The industry has made “filing the PERM”, “filing the labor”, “filing the eta9089” interchangeable and all refers to the following process.

This article describes the very beginning of the process and an explanation of the general timelines to go from permanent offer of employment to Green Card in-hand!

Let’s start with the very fundamental goal of the perm process. The goal is to test the labor market to determine if there are any qualified, willing and able U.S. workers who can fulfill the permanent job opening.

Step 1: Employer Creates the Job Description and Requirements

Once the employer confirms that they will to move forward with an offer of permanent residency, the employer must write the job description for the future/permanent or “Green Card”-based job. The job description must be sufficiently detailed, but we recommend it is kept as short and effective as possible. Why? Because this job description will go in major advertising channels and be costly if it is too long! As such, we recommend removing soft skill requirements and “fluff”. Although employers want their employees to have a “solid handshake”, the law prohibits employers use subjective grounds to disqualify U.S. workers and thereby undermine the system.

Employers generally aim for a paragraph-long job description that talks about the beneficiary’s future job. Remember, this is the future job once the beneficiary obtains a green card, which, depending upon the employee’s country of birth, can be within a few months to a few years. Creating the job description takes some time to perfect.

Once the job description is finalized, the employer will make a list of academic and experiential requirements. For example, an employer may state that the job requires a minimum of a Master’s degree and 2 years of experience. The beneficiary should also qualify for these job requirements and have these qualifications prior to joining the employer (if presently working for the employer). It is recommended, but not mandatory, that the beneficiary gain the minimum experience without counting experience gained with the sponsoring employer.

Step 2: Obtaining prevailing Wages

Once the job description and requirements have been finalized, the employer or employer’s attorney submits the form ETA 9141 with the Department Of Labor. The Department of Labor will issue assess the job duties and job requirements and issue the wages that MUST be paid to the employee when he or she has received the employment-based green card.

DOL is presently taking 4-5 months to issue the prevailing wages. This processing time can fluctuate up or down depending upon external factors, e.g. COVID, government shutdowns, work loads, etc.

Step 3: Recruitment/Advertising

Once the prevailing wages are issued, DOL requires the employer begin its labor market test by advertising the job opening by placing ads on different platforms. The goal of advertising is to

Apprise US workers of the job opportunity and
Determine if a qualified, willing and able U.S. worker applies

The employer must (1) place a “job order” with the State Workforce Agency for a period of 30 days and (2) place the job ad in 2 consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment. (An ad can be placed in a relevant professional journal in lieu of 1 Sunday newspaper ad.)

Furthermore, the employer must utilize at least three of the following additional channels of advertising:

Employer’s website
A job listing website (e.g monster.com)
Recruiting at a job fair
Radio or television program
Campus placement office
Local or ethnic newspaper
Employee Referral Program
Placing an ad with a professional or trade publication

If a U.S. worker applies, the organization must either offer the job to the applicant or restart the process. The U.S. worker need not be optimally qualified! No soft skills are important, but minimally qualified according to the requirements.

Employers must keep diligent records of every candidate and the reasons for their denial in a recruitment report. The employer must also maintain screenshots of the web posting, sign any Notice of Posting, and advertising documentation.

In our experience, this process typically takes 1.25 months.

Step 4: Mandatory DOL Quiet period

DOL requires that after the ads complete, the employer wrap up all recruitment steps. In this phase, the employer must finish any open interviews, complete a recruitment report and ensure US workers were interviewed properly. The duration of the quiet period is 1 month.

Step 5: File the Labor Certification

This is the application to DOL essentially saying that “we, XYZ Corp, conducted a market test to see if there is a qualified, willing and able US worker and there is none, however here is the foreigner who has the requisite minimum qualifications”. The application can be denied outright, audited, or approved.

If your case is selected for an audit, it can prolong the adjudication process. However, if the processes are properly conducted and documented, a response to the audit should not take too long!

The duration of this period is approximately 5-6 months if there is no audit. To find out what the current backlog and processing time is for cases, once submitted, please click here.

Step 6: File the Immigrant Petition (I-140)

If we are successful till step 5, we can file the I-140 with USCIS. This generally takes 5-6 months to adjudicate unless we file in premium for an additional $2500. USCIS may issue a Request For Evidence which can prolong adjudication.

The steps above have approximate timelines based upon today’s processing. With backlogs piling up, these timelines can become shorter or longer. Also, additional steps may be added by the government and/or us to strengthen a case.

7. Additional Resources

We want to represent you!

We have filed many PERM applications and are experienced in providing expert advice for complicated cases. We are well-versed in PERM regulations and audit requirements.

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