Labor Certification (PERM)

Labor Certification is the first of the three-step process for aliens to obtain U.S. permanent residence. The purpose of the labor certification process is to determine whether, for a given occupation, there are U.S. workers who are qualified, able, and willing to fill the proffered position. If an appropriate U.S. worker is not identified, the employer may sponsor the foreign national employee for lawful permanent residence status. Since March 28, 2005, all labor certification petitions are under new stream-lined, web-based Labor Certification Program known as PERM.

Three mandatory recruitment efforts:

Before filing PERM, employer has to conduct pre-filing recruit procedure. The following is a summary of recruitment effort that has to be followed by employer under the PERM:

  1. In-house posting for the Notification of filing for ten consecutive business days. In-house posting must contain the salary, but may contain a wage range
  2. Job order: The employer must place a job order for 30 days in the appropriate State job bank as maintained by the local State Workforce Agency. The job order must have been completed 30 days prior to filing the labor certification.
  3. Two Sunday newspaper ads in leading newspaper or in professional journals

Three additional recruitment steps:

The PERM program requires applications for professional jobs to undertake additional recruitment. A professional position is generally considered to include any job that requires at least a Bachelor's Degree for hire. Three (3) types of additional recruitment must be performed as chosen from a list of ten (10) eligible categories. These include:

  1. Job fairs
  2. Employer's website posting
  3. Third party website posting including newspaper related website postingF
  4. On-campus recruiting
  5. Trade or professional organizations
  6. Private employment firms
  7. Employee referral program if it includes identifiable incentives
  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
  10. Radio and television advertisements
The aforementioned additional recruitment steps must take place no more than 180 days before filing.

Recruitment Report:

Once all necessary recruitment is complete, the employer has to prepare a recruitment report with the summary of the recruitment steps taken and the result achieved. This would include the number of resulting hires and, if applicable, the number of U.S. workers who were rejected for the position in question, categorized by the lawful job related reasons for such rejection. This detailed report is not filed with the Labor Certification application, but the DOL Certifying Officer, after reviewing the application, may request a copy of the report along with U.S. workers' resumes, sorted by the reasons the workers were rejected. The recruitment report must also be retained in the event that an audit is required.

DOL final decision on PERM application:

If the application is not selected for audit, based on the regulation, the DOL will make the final decision within about 60 days following on-line submission. Audit letters will be sent if the DOL deems that there is a problem with the case or if the case is randomly selected for auditing. Upon receipt of the approved Labor Certification, the employer may continue to sponsor the foreign national employee for the immigrant visa petition known as I-140 petition.