Permanent Labor Certification (PERM)

A Permanent Labor Certification (PERM) can be obtained by employers to authorize the hiring of foreign workers for permanent, full-time positions within the United States. For most work opportunities, the employer must first seek approval from the Department of Labor (DOL) and then certification from the U.S. Citizenship and Immigration Services (USCIS). The employer must thoroughly document the hiring process in order to demonstrate that the position could not be filled by a United States citizen with a comparable background. Additionally, the hiring of the foreign worker must not disadvantage United States citizens working within the same field. The PERM certification process, outlined in greater detail below, can take anywhere from months to years to complete.

PERM Certification Process

  1. The Hiring Process: Employers must keep meticulous records of the hiring process in order to be able to prove that regulations have been followed. Any documentation of the should be kept on file for at least five years. First, employers must guarantee that the position has been advertised as available for citizens of the United States and was not tailored to provide employment for a foreign worker. To demonstrate compliance with this requirement, employers must document how many U.S. citizens applied and were turned down for the position. Additionally, the hiring of a foreign worker cannot disadvantage U.S. citizens in the same field, and therefore, employers must show that that the wage offered for the position meets prevailing wage requirements. In order to document this, employers can inquire for information from the National Prevailing Wage Center (NPWC). Regulations also differ based on the category of professional/non-professional work. Employers must comply with 20 CFR §656.17(e)(1) regulations for professional occupations, usually defined as positions that require a Bachelor’s degree or higher. Non-professional occupations must comply with the 20 CFR §656.17(e)(2) regulations. These regulations do not apply to employment positions designated as Schedule A obligations or sheepherders applying under 20 CFR §656.16. For more information about Schedule A Occupations, refer to the “Schedule A Occupations” section below.
  2. Filing with the Department of Labor (DOL): The next step in the process of obtaining Permanent Labor Certification involves filing ETA Form 9089 with the DOL’s Employment and Training Administration. Employers must complete this form at least 30 days after the and no more than 180 days after the hiring process. The DOL does not typically charge for the filing of this application. The DOL will issue certification if the employer has offered sufficient proof that the position could not have been filled by a U.S. citizen and that the hiring of the foreign worker will not harm other U.S. citizens. This application will involve outlining the job requirements and the foreign worker’s qualifications. The DOL strongly recommends that employers utilize the online application interface, in which the employer will create an online profile. Filing electronically ensures that the all of the required information has been included in the application and allows the employer to be able to track the application status online. If an employer chooses to file by mail, applications should be sent to the Atlanta National Processing Center.
  3. Filing with the U.S. Citizenship and Immigration Services (USCIS): After receiving certification from the DOL, employers must submit Form I-140, Immigrant Petition for Alien Worker, to the USCIS within 180 days. The USCIS charges a fee for filing for a Visa or Green Card. Employers must include the certified ETA Form 9089 form and any relevant fees in the application, which then can be sent to the corresponding USCIS Service Center.

 

Call (248) 979-5390 or (917) 426-8227 to schedule a consultation.  Or contact me here.

 

PERM Timeline

The application process can take from months to years to complete. Employers are encouraged to regularly check the status of the application.  If it is 30 days after the the processing time indicated by the DOL since the employer filed the application, the employer can contact the National Processing Center to inquire about the status.

NPWC Processing Times (as of 9/1/2016)

Processing Queue Request Date Status
H-1B May 2016 Current
H-2B August 2016 Current
PERM May 2016 Current
Submission Date
Redeterminations H-1B – May 2016
PERM – May 2016
  Current
Center Director Reviews PERM / H-1B- May 2016

H-2B – August 2016

  Current

The term “current” means all H-1B, H-2B and PERM prevailing wage requests that are being actively processed.

The table above shows the filing date (for applications) or submission date (for appeals) of the requests that are currently being processed by the National Prevailing Wage Center (NPWC).  Requests are processed in the order received and cannot be expedited. The Department of Labor encourages employers to request a prevailing wage determination (PWD) for the H-2B program at least 60 days before the determination is needed.

 

Program Average Number of Days to Issue Wage Determinations
Month OES (Calendar Days) Non-OES (Calendar Days)
H-1B August 2016    92    99
H-2B August 2016    28    35
PERM August 2016    92    90

 

The table above shows the average amount of time it took the NPWC to issue wage determinations (by program) for all determinations made in August 2016.  Actual processing times will vary based on the circumstances of each individual request.


PERM Processing Times (as of 9/1/2016)

Processing Queue Priority Dates
Analyst Review June 2016
Audit Review January 2016
Reconsideration Requests to the CO July 2016
Gov’t Error Reconsiderations  Current

 

The term “current” means all H-1B, H-2B and PERM prevailing wage requests that are being actively processed.

The table above shows the filing dates (for Analyst Review and Audit Review cases) or appeal dates (for Reconsideration Requests) of the cases now being adjudicated at the Atlanta National Processing Center.

Determinations Average Number of Days to Process PERM Applications
Month Calendar Days
Analyst Review August 2016    85
Audit Review August 2016    229

The table above shows the average number of days it took to process PERM requests for all determinations made in August 2016.  Actual processing times will vary based on the circumstances of each individual request.

 


H-2A Processing Times (updated as of close of business 9/24/2016)

Case Receipt Week Total Cases Submitted Total Cases Issued First NOA or NOD Percent Receipt Week Completed
Most Recent Week Completed
Sep 11 – Sep 17 67 67 100%
Current Processing Week
Sep 18- Sep 24 95 8 87%

The table above shows the progress of the Chicago National Processing Center (CNPC) in issuing an initial/first Notice of Acceptance (NOA) or a Notice of Deficiency (NOD) for H-2A cases received in the week listed.  When all first actions for applications received during the calendar week are issued (i.e., 100% complete), the CNPC moves to the next calendar week of applications received.

Processing Activity Total Cases Current Status
Average Number of Days to Process Complete Cases (cumulative over the last 2 weeks) 78 22 Calendar Days
Average Number of Days to Process Incomplete Cases (cumulative over the last 2 weeks) 45 39 Calendar Days

For the most recent two-week period, the table above shows the average number of days it took to process complete and incomplete cases.  Actual processing times will vary based on the circumstances of each individual request.

A “complete” H-2A application is defined as one containing all the documentation required by law or regulation (e.g., recruitment report, farm labor contractor license, housing inspection report) necessary for the OFLC to issue a final decision 30 days before the employer’s start date of work.  For “incomplete” applications, OFLC will either issue Notice of Denial or provide employers with additional time to submit documents necessary to meet program requirements.


H-2B Processing Times (updated as of close of business 9/17/2016)

Case Receipt Week Total Cases Submitted* Total Cases Issued First NOA or NOD Percent Receipt Week Completed
Most Recent Week Completed
Sep 3 – Sep 10 52 52 100%
Current Processing Week
Sep 11 – Sep 17 53 46 87%
Sep 18- Sep 24 51 3 6%

The table above shows the progress of the Chicago National Processing Center (CNPC) in issuing an initial/first Notice of Acceptance (NOA) or a Notice of Deficiency (NOD) for H2-B cases received in the week listed.  When all first actions for applications received during the calendar week are issued (i.e., 100% complete), the CNPC moves to the next calendar week of applications received.

Processing Activity Total Cases Current Status
Average Number of Days to Process Cases with No Deficiencies (cumulative over the last 2 weeks) 28 35 Calendar Days
Average Number of Days to Process Cases with Deficiencies (cumulative over the last 2 weeks) 62 49 Calendar Days

The table above shows the average number of days it took the Chicago National Processing Center (CNPC) to process non-deficient and deficient H2-B cases.  Actual processing times will vary based on the circumstances of each individual request.

Schedule A Occupations

Schedule A Occupations consist of areas of employment that have been specially designated by the DOL because there are not enough U.S. citizens qualified or able to fill the positions. As a result, the hiring of foreign workers for Schedule A Occupations does not represent a problem  for U.S. citizens in terms of resulting in lower wage compensation or worsened working conditions. Schedule A Occupations fall either into Group 1 or Group 2 classification as determined by the 20 CFR §656.17 regulation. Group 1 includes physical therapists and professional nurses, while Group 2 applies to the fields of science, arts, and performing arts. The Group 2 science or arts category includes professors who are looking to teach courses in the United States. The application process for Schedule A Occupations differs in that the ETA Form 9089  must be filed with the USCIS and not with the DOL.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (917) 426-8227 or (248) 979-5390.  I accept clients from across the U.S. and around the world.  My law offices are conveniently located in Lower Manhattan, New York and in Troy, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.