There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition, and (3) I-485 Adjustment of Status from non-immigrant status to that of a legal permanent resident (or apply for a green card at a U.S. consulate abroad). The PERM labor certification process is usually the biggest obstacle to overcome because the process is lengthy, involves multiple stages, and requires careful strategizing to avoid mistakes along the way.

This article offers comprehensive insights into PERM that enable employers and employees to grasp the complexities involved and make informed decisions as they navigate this process.

What is a Permanent Labor Certification (PERM)?

A certified PERM authorizes an employer to hire a foreign worker for permanent employment in the United States (once the green card is issued). Before the U.S. employer can file an I-140 immigrant petition with the U.S. Citizenship and Immigration Services (USCIS), they must secure a certified labor certification application from the Department of Labor’s (DOL) Employment and Training Administration (ETA). The DOL must confirm to the USCIS that there are insufficient qualified and available U.S. workers to fill the job position in the intended area of employment, and that hiring the foreign worker will not adversely impact the wages or working conditions of similarly employed U.S. workers. Therefore, an employer sponsoring a foreign worker for permanent employment must first adequately test the U.S. labor market for “able, willing, qualified, and available” U.S. workers by conducting a series of recruitment efforts.

What is a U.S. worker? 

According to PERM regulations, a U.S. worker is defined as a U.S. citizen, permanent resident, refugee, or asylee.

When is a PERM Labor Certification Required?

Generally, a PERM labor certification is required if an employer is filing an EB-2 or EB-3 immigrant petition on behalf of a foreign worker. There are certain limited situations that do not require a certified PERM application from the DOL (e.g. EB-1A Extraordinary Ability, EB-1C Multi-National Manager/Executive, EB-2 National Interest Waiver, Schedule A Group I and II).

Does an approved PERM Labor Certification give a foreign worker the right to work in the U.S.? 

No, having an approved PERM application does not grant an individual the legal authorization to work in the U.S. However, it does enable an employer to submit an EB-2 or EB-3 I-140 immigrant petition on behalf of the foreign worker. Consequently, most individuals continue to work under a temporary work visa, such as an H-1B, while their green card application is being processed.

What does the PERM application process require the employer to document?

The PERM process requires the employer to document its recruitment methods and results, report relevant details regarding the company, the offered position, and the foreign national, and make certain attestations about the position, wages, and recruitment conducted.

The employer does not actually submit supporting documents with the PERM application; instead by submitting the PERM application, the employer attests that all PERM regulations were met. In the event of a PERM audit, supporting documentation will need to be provided. 

How much time does it typically take to complete the filing of a PERM application?

Assuming no able, willing, qualified, and available U.S. workers are found for the job opportunity, it is currently taking approximately 8 months to file a PERM application.

In order to file a PERM application, a Prevailing Wage Determination is required and recruitment must be complete. Currently, the DOL is taking about 6 months to issue Prevailing Wage Determinations. Once issued, the employer must undergo recruitment and that process will take a minimum of 60 days. 

The prevailing wage processing times have a major impact on how fast a PERM application can be filed. Although the minimum 60-day recruitment period cannot be changed, prevailing wage processing times can. For the most up to date processing times, visit FLAG.

Is premium processing available for PERM? 

Unfortunately, the DOL does not provide a premium processing option for prevailing wage determinations or PERM applications. However, an employer may speed up the process by starting the recruitment efforts (as described below) while the Prevailing Wage Determination Request is pending. This approach can shorten the timeline by 60 days.

Please be aware that there are several factors to carefully consider before pursuing this option. Employers are strongly advised to consult with a qualified immigration attorney beforehand.

How long does it take the DOL to process a PERM application once filed? 

Currently, the DOL is taking approximately 12-13 months to adjudicate PERM applications. Processing times vary throughout the year. General processing times can be found here: FLAG.

If the PERM application is selected for Audit, how much time will this add to the process?

Currently, the DOL is taking about 3 months to process audits after the response is submitted. Processing times vary throughout the year. General processing times can be found here: FLAG

What are common PERM audit triggers?

Please visit: Minimize Your Risk of PERM Audit

What are PERM minimum requirements? 

The PERM job requirements must represent the employer’s actual minimum requirements for the job opportunity. This means that the employer cannot include preferences as part of its requirements.  

Example: An employer typically prefers candidates for a Civil Engineer position to hold a Master’s degree in Civil Engineering, but acknowledges that individuals with a Bachelor’s degree in the same field can adequately perform the role. Additionally, the employer has previously hired several employees for the identical position who all possessed Bachelor’s degrees only. Therefore, in this case, the minimum education requirement for the employer must be listed as a Bachelor’s degree in Civil Engineering.  

What is a Prevailing Wage? 

The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The DOL issues a prevailing wage determination based on multiple factors including the job duties, minimum requirements for the position, area of intended employment (work location), travel requirements, license/certification requirements, etc.

The prevailing wage is the minimum rate the employer must offer for the permanent position. This rate must also be paid to the foreign worker once the green card is obtained.

What is the mandatory recruitment for both non-professional and professional occupations? 

All PERM applications for both professional and non-professional occupations require the following recruitment efforts:

• 30 day job order with the State Workforce Agency serving the area of intended employment;
• Two Sunday print advertisements in a newspaper of general circulation in the area of intended employment, most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers; and
• Notice of Filing to be posted at the job site for a period of 10 consecutive business days.

What additional recruitment is required if the PERM application is for a professional job?

In addition to the mandatory recruitment mentioned above, the DOL requires 3 additional recruitment efforts to be posted. The employer must choose 3 from the following list:  

• Job Fairs
• Employer’s company website
• Job search website 
• On-Campus recruiting 
• Trade or professional organization 
• Private employment firms
• Employee referral program
• Campus placement office
• Local or ethnic newspaper
• Radio or TV advertisement

What is the 30-day quiet period?

After completing all required recruitment efforts, the employer must allow potential U.S. applicants an additional 30 days to apply for the job opportunity. This 30-day “quiet period” begins immediately after the last day of each recruitment effort. Please note that if the position is a professional one, ONE of the three additional efforts may take place within 30 days of filing the PERM application.

Do recruitment efforts remain valid indefinitely? 

No, advertisements are valid for 180 days. All recruitment must be complete including the 30-day job order, the 10-day notice of filing and the 30 day “quiet period” within no more than 180 days. The clock starts on the very first day of recruitment. Therefore, it is advantageous to initiate all recruitment efforts as closely together as possible.

Does the foreien worker submit qualifying documentation with the PERM application?

The PERM application will include the foreign worker’s qualifying information, but their qualifying documentation is not submitted with the application. Qualifying documentation will however be submitted to USCIS when filing the I-140 Immigrant Petition. For example, if the PERM position requires education and experience, the foreign worker’s diploma, transcripts, and experience letters will need to be submitted with the I-140 petition. All documentation should be properly reviewed and verified by a qualified immigration attorney before submission of the PERM application to ensure I-140 approval. For more information, visit: Planning Ahead to Ensure I-140 Approval.

Can experience gained with the sponsoring employer be used to qualify for the PERM position?

Typically, the DOL does not allow a foreign worker to use experience gained with the sponsoring employer to qualify for the offered position. However, there are certain exceptions that apply:

1. Infeasibility to Train: The sponsoring employer must demonstrate that it is no longer able to train a U.S. worker as it did the beneficiary for the position. A detailed explanation will have to be provided by the employer. A mere statement of inefficiency or economic hardship will not suffice. For more information, visit Obtaining an Approved PERM Application Using Training/Experience Gained After Joining the Sponsoring Employer: Infeasibility to Train Exception
2. Substantially Different Jobs: A beneficiary may satisfy the employer’s actual minimum requirement through experience gained with the sponsoring employer if the position in which the experience was gained is not substantially comparable to the offered PERM position. A “substantially comparable” job means a job requiring performance of the same job duties more than 50 percent of the time. For more information, visit: PERM: Using Experience Gained With the Sponsoring Employer.
3. Qualifying Experience Gained with a Related Entity: A beneficiary can use qualifying experience gained during employment with an entity that is related to the sponsoring employer as long as the companies have different Federal Employer Identification Numbers (FEIN). 

Who can pay for the PERM process? 

According to PERM regulations, the employer must pay for the entire PERM process, including legal fees and advertisement costs. The I-140 immigrant petition and I-485 adjustment of status application can be paid by either the employer or foreign worker. 

Why can’t the foreign worker beneficiary be involved in the recruitment process?

According to PERM regulations, the foreign worker beneficiary is not allowed to be involved in any portion of the recruitment process. This rule is in place to prevent any undue influence over the recruitment process by the beneficiary.

Is it necessary for the foreign worker to be in the U.S. for an employer to file a PERM application?

No, a beneficiary does not need to be in the U.S. for an employer to file a PERM application on their behalf. In fact, the beneficiary does not need to work for the U.S. employer until the green card is obtained. This is because employment-based sponsorship is for a future position. However, the employer must take into account ability to pay considerations if the beneficiary will not be on payroll from the date the PERM application is filed.

What is ability to pay?

An employer sponsoring a foreign worker for a PERM-based green card must prove its Ability to Pay (ATP) the beneficiary the prevailing wage specified on the PERM application, from the time the PERM is filed until the green card is issued. There are three methods to demonstrate this ability to pay:

1. Evidence that the wage paid to the beneficiary is equal to or greater than the proffered wage (pay-stubs, W-2s);
2. Evidence that the company’s net income is equal to or greater than the proffered wage (annual report, tax return, or audited financial statement); OR
3. Evidence that the company’s net assets are equal to or greater than the proffered wage (annual report, tax return, or audited financial statement).

Example 1: The beneficiary is employed by Company X from the time the PERM application is filed, and the prevailing wage is $80,000 per year. The beneficiary’s current salary is $82,000 per year. Company X can demonstrate ATP.

Example 2: The beneficiary is employed by Company X from the time the PERM application is filed. The prevailing wage is $80,000 per year, and the beneficiary’s current salary is $70,000 per year. Company X has a net income of $150,000. The company can demonstrate it has the ability to pay the difference between the prevailing wage and the current salary ($150,000 net income covers the $10,000 difference). Company X can demonstrate ATP.

Example 3: The beneficiary is employed by Company X, but Company Y files a PERM application on behalf of the beneficiary. The prevailing wage for the position is $80,000 per year. Because the beneficiary is currently working for Company X, Company Y will have two options to demonstrate ATP: (1) through its net income or (2) through its net assets. Company Y has a net income of $250,000. In this situation, the company can demonstrate ATP.

Example 4: Same situation as example 3, but Company Y has a net income of $15,000 and net assets that amount to $50,000. In this situation, Company Y cannot demonstrate ATP.

After a PERM is approved, is it valid indefinitely?

No, an approved PERM application is only valid for 180 days. Therefore, an I-140 immigrant petition must be filed within the PERM validity period. If the deadline is missed, the employer will have to begin the process from the beginning and obtain a new certified PERM.

If I change employers, can my new employer use my previous PERM application?

No, if Company A secured a PERM approval and you move to Company B, Company B must file a new PERM application on your behalf for you to eventually adjust your status. However, if you obtained an approved I-140 from Company A, you can retain that priority date to maintain your place in line for the green card once Company B obtains an approved PERM and files the I-140 petition. Additionally, if the I-140 was approved for at least 180 days, you can utilize it for H-1B extensions beyond the 6-year limit, regardless of whether you are still employed with the company that initially obtained the approved I-140.

As an immigration law firm that has been serving our clients for over 25 years, our team is here to offer prompt, practical, and professional advice, whether you’re a company seeking to hire top talent to grow your business or a foreign worker wanting to develop a career in the United States.  If you have any questions, please schedule a consultation with one of our attorneys at https://appointments.rnlawgroup.com/.

By: Krystal Alanis 

Krystal Alanis is a Partner at Reddy Neumann Brown PC with over 12 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also works on a variety of nonimmigrant work visas (e.g. H-1B, TN, L-1). Krystal serves as the American Immigration Lawyers Association Houston Section Co-Chair, has hosted multiple educational webinars regarding a variety of Employment-Based Immigration topics, and has been interviewed by Forbes, where she discussed the PERM Labor Certification program and the challenges high-skilled immigrants and employers face in light of the unprecedented delays that have plagued the PERM program for years and was quoted in Bloomberg Law, where she provided insight into the effects of tech layoffs on the employment-based green card process for H-1B visa holders. Krystal has also been a speaker at the University of Houston where she discussed the variety of immigration-related options available to F-1 international students beyond graduation.