What is PERM labor certification and how does it work?

Question 1

What are the steps in the PERM process?

Accepted Answer

First, the employer asks the Department of Labor for a prevailing wage determination, which sets the lowest wage it may offer for that job in that area. Next comes required recruitment to test the job market: a job order with the state workforce agency, ads on two different Sundays in a newspaper of general circulation, three more recruitment steps for professional jobs, and a notice about the application posted at the workplace. If recruitment turns up no U.S. worker who is able, willing, qualified, and available, the employer files the labor certification application, Form ETA-9089, through FLAG, the Department of Labor's online filing system. The Department can then approve the application, deny it, or select it for an audit that asks for supporting documents, such as the recruitment records, and in some cases it can require supervised recruitment, in which the employer recruits under the Department's direction.

Question 2

Can I file PERM myself or sponsor myself?

Accepted Answer

The rules require a PERM application to be filed by an employer for a permanent, full-time job, and the employer has to be someone other than the worker. When the worker owns part of the company, is related to its owners or officers, or is one of a small number of employees, the employer must be able to show in an audit that the job is real and was open to any U.S. worker. Some green card categories do not go through PERM, such as the EB-2 national interest waiver (NIW) and the EB-1 category, and in some of those the person can file their own petition. If a business you own or a family business is part of the plan, have it reviewed by an attorney before anything is filed.

Question 3

Who pays for PERM, the employer or the employee?

Accepted Answer

Federal rules bar the employer from asking for or accepting any payment from the worker, or from anyone on the worker's behalf, for the work of obtaining the labor certification, including the employer's attorney fees and recruitment costs. That covers money, deductions from wages or benefits, payments in kind, reimbursement agreements, and unpaid work, and the rules also prohibit selling or buying a labor certification application or an approved certification. The worker may pay their own attorney's fees for representing the worker, but when the same attorney represents both the worker and the employer, the rules put those fees on the employer as well. This rule covers the labor certification stage; who pays for later steps, such as the Form I-140 petition, is a separate question to raise with an attorney.

Question 4

How long does PERM take?

Accepted Answer

There is no fixed timeline, because each stage depends on different factors: the wage determination, the employer's recruitment, and the Department of Labor's review of the application. The Department of Labor posts current processing times on its FLAG website for both prevailing wage requests and PERM applications, showing the month of filings it is working on now. The Department also notes that any single case may take more or less time than the average, and an audit or supervised recruitment adds steps. PERM is also only one part of the path, since the total time to a green card depends on the I-140 petition and on the worker's priority date, their place in line for a visa, in the Visa Bulletin.

Question 5

What happens after PERM is approved?

Accepted Answer

An approved labor certification expires unless the employer files it with U.S. Citizenship and Immigration Services (USCIS), together with the immigrant petition on Form I-140, within 180 calendar days of approval. In that petition, the employer asks USCIS to place the worker in the right employment-based category, such as EB-2 or EB-3. When a visa is available under the worker's priority date, the last step follows: adjustment of status inside the United States, where the law allows it, or consular processing at a U.S. consulate abroad. The labor certification is not the green card; it is the prerequisite that lets the employer file the petition.

Question 6

What is a priority date, and how does the Visa Bulletin work?

Accepted Answer

In cases that require labor certification, the priority date is the date the Department of Labor accepted the PERM application for processing. That date holds the worker's place in line for an immigrant visa, because only a limited number of visas are available each year in each category, with additional limits by country, usually the country of birth. The State Department publishes the Visa Bulletin every month, with charts showing which priority dates can move forward in each category and country. Once the priority date is current under the bulletin, the case can move to the final stage, as long as the other requirements are met.

Question 7

What happens to my PERM if I lose my job or the company changes?

Accepted Answer

A labor certification is valid only for the specific job, the worker named in the application, and the work area listed in it, so it normally cannot be used with a different employer. If the company is sold or restructured, the company that takes over the business can continue the case as a successor only if it shows, among other things, that it acquired the business or the relevant part of it and that the job offered is still the same. If the I-140 petition has already been approved, the worker generally keeps that priority date for a future petition, unless the approval is revoked for fraud, a material error, or other reasons the regulations list. Keeping the priority date does not replace the process, though, and a new employer generally has to start its own labor certification. Special rules also apply to people whose adjustment of status application has already been pending for 180 days or more.

Question 8

Does PERM give me a work permit or legal status?

Accepted Answer

A labor certification on its own does not give a work permit or immigration status; it is a Department of Labor finding that lets the employer move forward with the immigrant petition. If the worker is already in the United States, their current status, such as a temporary work visa, keeps its own rules and expiration dates while the case moves forward. In some cases, a labor certification or I-140 petition filed far enough in advance allows H-1B status to be extended beyond its normal limit. Once an adjustment of status application is filed, the rules allow the worker to ask for a work permit while it is pending.

Question 9

Can my spouse and children get green cards through my PERM?

Accepted Answer

The labor certification is filed only for the main worker, but the law generally allows the worker's spouse and unmarried children under 21 to apply for green cards as dependents. Family members do not need their own labor certification, because their applications depend on the main worker's case. Each family member files their own green card application, inside the United States or at a consulate, and has to meet their own requirements. If a child is close to turning 21 or the family situation changes during the process, it is worth getting individual advice.