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
- 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.
- 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.
- 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.
Permanent Labor Certification 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 10/31/2019)
|Processing Queue||Request Date|
|Redeterminations||H-1B: October 2019|
PERM: October 2019
|Center Director Reviews||CW-1: None Pending|
H-1B: October 2019
H-2B: October 2019
PERM: October 2019
“Request Date” 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)|
The table above shows the average amount of time it took the NPWC to issue wage determinations (by program) for all determinations made in October 2019. Actual processing times will vary based on the circumstances of each individual request.
PERM Processing Times (as of 10/31/2019)
|Processing Queue||Priority Date|
|Analyst Review||July 2019|
|Audit Review||February 2019|
|Reconsideration Request to the CO||May 2019|
The table above shows all H-1B, H-2B and PERM prevailing wage requests that are being actively processed.
It also 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|
|Analyst Review||August 2019||70|
|Audit Review||March 2019||239|
The table above shows the average number of days it took to process PERM requests for all determinations made in August and March of 2019. Actual PERM processing times will vary based on the circumstances of each individual request.
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 (248) 630-3239. I accept clients from across the U.S. and around the world. My law office is conveniently located in Troy, Michigan for in-person meetings. For phone consultation, you can reach me from any part of the United States or abroad.