What employees need to know about the PERM Labor Certification process

This blog post was co-authored by Molly Carey, Partner at Fragomen, and Christopher Patalano, Associate at Fragomen. PERM Labor Certification is the first step for many employment-based green card applications. PERM is a lengthy, complex, and often frustrating process. In this blog, Fragomen experts demystify PERM and explain how you can advocate for yourself during the employer-driven PERM Labor Certification process.

Green cards overview

Green cards are permanent resident visas that allow foreign nationals to live and work in the US long-term. One way to acquire a green card is to have an employer sponsor you. There are three main stages of the employment-based (EB) green card application process:

1. PERM Labor Certification – takes 1.5-2 years on average
2. I-140 Immigrant Visa Petition – takes 9-21 months on average with 15-day premium processing available for an extra fee
3. I-485 Adjustment of Status Application – takes 1-2 years on average

PERM Labor Certification

The PERM Labor Certification process was created to help protect US workers from an influx of foreign labor.  It’s the first stage for Employment-Based Permanent Residence. There are paths to obtaining a green card without pursuing Labor Certification, including the EB-2 National Interest Waiver.

To pass PERM, the Department of Labor (DOL) must certify that employment of the foreign national will not negatively affect the working conditions or wages of US workers and that there are no US workers who are willing and qualified for the role. The employer is responsible for the majority of the PERM process, but there are some requirements for the employee.

How it works:

1. The employer determines the minimum requirements of the PERM sponsored role.
2. The employer files a Prevailing Wage Determination.
3. The employer conducts a labor market test.
4. The employer files PERM ETA-9089 with DOL.
5. The employer completes a DOL Audit or Supervised Recruitment, if applicable.

PERM timeline

PERM is the longest and most complex part of the green card application, so we recommend starting the process as early as possible. It takes about two years on average, and no expedited processing is available. It may take more than two years depending on a variety of factors including:

• The employer’s familiarity with PERM
• The current economic environment in the US
• DOL processing times

If the employer fails the PERM labor market test, you must wait at least six months before reapplying. Alternatively, processing times could be lower when employers use shared recruitments, which allow for multiple employees to apply for Labor Certification using the same recruitment campaign. You can ask your employer if they are sponsoring any other foreign nationals for Labor Certification in the same job profile at that time.

Role of employer in PERM

The employer decides when to start PERM. They determine the minimum requirements for the job and show that those requirements are reasonable. For example, requiring a foreign language when it is not needed for the role would be an unreasonable job requirement.

The employer must also prove they can and will pay the prevailing wage for the position as determined by the DOL. Lastly, the employer must pay all associated fees and advertising costs throughout the PERM process.

Role of employee in PERM

While PERM Labor Certification is employer-driven, there are ways the employee can advocate for themself during the process. The employee can ask the employer to start the PERM process or to sponsor them for a green card in a prospective role. If you are on a temporary visa, we recommend asking your employer for green card sponsorship as soon as possible. You can even ask during the interview process for a new job. However, remember that it is ultimately the employer’s choice to sponsor an employee or not.

The employee is responsible for proving that they meet the minimum requirements for the role. They must provide the following documentation:

• Copies of their full transcripts and diploma(s)
• Information on all previous employers
• Signed Employment Verification Letters (EVLs) from previous employers confirming employment experience

The employee is also responsible for securing temporary visa extensions if necessary to remain in the US legally while the employer is completing Labor Certification. H-1B visa holders can get a one-year extension, but they must file at least one year before the current visa expires. If your I-140 has already been approved before the temporary visa expires and your priority date is not current, you can get a three-year extension.

Some visas such as L-1 require getting an additional Employment Authorization Document before the temporary visa expires to remain current. Other visas such as TN and E-3 have travel limitations during the green card process. Contact Fragomen to discuss your specific circumstances.

Qualifying for a PERM-sponsored position

If the employer is completing Labor Certification for your current position at your job, then you must meet the minimum education and experience requirements before you began the job even if you haven’t applied for Labor Certification yet. If the Labor Certification is for a prospective position, then you have until your employer files the PERM application to meet the minimum requirements even if you are already employed by that company in another position.

Usually, the work experience you are using to qualify for PERM must be full-time. Part-time experience counts but only for time worked. For example, two years of working 20 hours per week is equivalent to one year of full-time, 40 hours per week experience. Experience with your current employer may count if the role you had is not substantially comparable to the PERM sponsored role. Internship experience may also qualify if it was not part of your degree requirements.

Impact of job changes on the PERM process

If your I-485 application has been pending for less than 180 days, the employer will need to file a new PERM if:

• The employing entity changes (different FEIN number). Be careful about transfers when working for a large corporation as different subsidiaries, branches, etc. may have different FEINs and therefore be considered a different employer.
• The work site location and/or remote work agreement changes.
• The majority of your job duties change.

If I-485 has been pending for 180 days or more, no new PERM is required as long as the new job is in the same occupational classification.

Impact of layoffs

Company layoffs in the past six months in the same area and similar jobs as your position may affect the PERM process. To qualify for PERM, the company must offer the job to laid-off employees first before offering it to a foreign national.

Immigrant visa categories that require PERM

The two most common employment-based green cards, EB-2 and EB-3, require PERM Labor Certification. The EB category depends on the minimum requirements necessary to qualify for the PERM sponsored position. The minimum requirements are determined by the employer, and the employee cannot be involved in the setting of the minimum requirements/EB category.

EB-2: Advanced-Degree Professionals of Exceptional Ability

An EB-2 visa requires an advanced degree (master’s or higher) or a bachelor’s degree with five years of progressive post-baccalaureate relevant experience. Experience gained before you receive your bachelor’s degree does not count towards this requirement.

The PERM process for higher education teaching positions under EB is different from regular PERM. This Special Handling PERM is faster and has a higher acceptance rate. For this reason, EB-2 is an excellent option for college and university faculty.

If you qualify for both EB-2 and EB-3, EB-2 is usually a better choice, but everyone’s situation is unique.

EB-3: Professionals and Skilled Workers

EB-3 is the most commonly used EB category. It’s often the best option for employees who do not have an advanced degree. There are three EB-3 subcategories with different requirements:

• Professionals – bachelor’s degree required
• Skilled workers – 2 years of training and/or experience required
• Unskilled workers – limited to 10,000 visas per year

What are visa bulletin and priority date?

The Visa Bulletin shows when you can apply for a green card and when it will be issued based on the green card category and your country of birth. The Visa Bulletin is issued monthly by the US Department of State.

The priority date is the date the employer filed the PERM Labor Certification with the DOL. The date is issued when the I-140 petition is approved. Once the date is issued, you can keep it even if you change jobs or employers. The priority date will transfer to the new PERM with the new job/employer.

Alternatives to the PERM Labor Certification

Some employment-based green cards do not require PERM Labor Certification. For those green care categories, the employer will skip directly to step two – filing the I-140 petition. This makes the green card application process faster and easier for you and the employer. However, there are strict requirements to qualify for a PERM-exempt green card.

EB-1A: Persons of Exceptional Ability

To qualify for an EB-1A visa, you must prove that you have extraordinary ability in science, arts, education, business, or athletics. You must meet three out of ten criteria to show you are top of your field. This green card can be self-sponsored which makes it a great option for entrepreneurs and other foreign nationals who do not have a qualifying employer.

EB-1B: Outstanding Professors and Researchers

EB-1B is for college and university professors and researchers. It is only for permanent positions such as tenure-track. Your work must be internationally recognized, and you must meet two of six criteria.

EB-1C: Multinational Executives/Managers

The EB-1C green card is for executives and managers of multinational companies. To apply, you must have one year of experience as a manager or executive in the past three years outside of the US with a company affiliated with the US international students and recent graduates likely will not qualify for EB-1C.

EB-2: National Interest Waiver

EB-2 National Interest Waiver (NIW) visas have the same requirements as other EB-2 visas. However, for NIW, you must show that your employment will benefit the US in some way. No labor certification is needed for NIW which means faster processing. Also, unlike other EB-2 visas, you can self-sponsor with NIW.

Tips on advocating for yourself

• Ask your employer about their PERM process in advance. It’s okay to ask during your initial interview!
• Ask about prospective roles for PERM qualification outside your current position.
• Confirm that there are no recent layoffs and no potential job changes in the near future.
• Consider applying for an H-1B visa first to give yourself more time. It is also an employer-sponsored visa in which the employer applies on your behalf.
• Ask your employer for status updates throughout the PERM process.
• Check the visa bulletin regularly as it can change every month.

Working with PERM Labor Certification experts

The PERM Labor Certification process can be confusing and overwhelming. Make sure you understand what parts you are legally allowed to be involved in, what documentation is required from you, and how you can advocate for yourself through the employer-driven process. For more information about PERM and other permanent visa options, contact Fragomen’s immigration experts today. We can help you and your employer navigate the PERM Labor Certification process.