Permanent Labor Certification (PERM) Archives

In this week’s episode, BAL’s Chad Li and Kyle McLaughlin discuss common questions about the PERM process and identify four main considerations employers should be aware of when navigating its complexities. Plus, the latest U.S. and global immigration news.

This podcast has been provided by the BAL U.S. Practice Group.

Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

In this week’s episode, BAL’s Kristi Ngo explains why the EB-5 visa is a viable alternative to the traditional PERM green card path for certain foreign national investors. Plus, the latest U.S. and global immigration news.

Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL news site.

This podcast has been provided by the BAL U.S. Practice Group.

USCIS reduces its case backlog.

The Department of Labor extends a deadline for input on its Schedule A job classification list.

And how a pair of Supreme Court cases about the fishing industry could reshape immigration processes.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

This alert has been provided by the BAL U.S. Practice Group.

PERM: Labor Certification Basics

What is a PERM Labor Certification and when is it required?

A Labor Certification is a document issued by the U.S. Department of Labor (DOL) that is required for many immigrant visa preference categories. The filing of a Labor Certification application with DOL by the sponsoring employer is an early step in the multi-step process for a foreign national to obtain permanent residence (a “Green Card”). The system that DOL uses to process employers’ applications for Labor Certifications is called Program Electronic Review Management, also known as “PERM.”

As part of the Labor Certification process, the employer is required to test the labor market and demonstrate that there are no U.S. workers in the geographic area of employment who are able, willing, qualified, and available to perform the job in question, and that the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

An employer sponsoring a foreign national for the following immigrant visa preference categories must obtain an approved Labor Certification from DOL before a Form I-140 (Immigrant Petition for Alien Workers) can be filed with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign national:

EB-2 Second Preference Category — This category includes individuals with Advanced Degrees and Exceptional Ability. Individuals applying for EB-2 Second Preference based on a National Interest Waiver are not required to obtain a Labor Certification.
EB-3 Third Preference Category — This category includes individuals who are Skilled Workers, Professionals, and Unskilled Workers (Other Workers).

To qualify for a Labor Certification, the employer must demonstrate:

There is a bona fide, full-time permanent job opening that is available to U.S. workers.
The job requirements adhere to what is customarily required for the occupation in the United States and are not tailored to the foreign worker’s qualifications. The job opportunity must be described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
The employer will pay at least the prevailing wage for the occupation in the area of intended employment.

What is the process to obtain a PERM Labor Certification?

Obtaining a Labor Certification is a multi-month process that requires a number of different steps, including:

Prepare a Job Description or Job Summary — The employer must identify the specific duties and the minimum education, skills, and experience required for the job opportunity.

Obtain a Prevailing Wage Determination — The employer must request and obtain a prevailing wage determination from DOL. This requires the employer to file a Form ETA 9141 (Application for Prevailing Wage Determination) that describes the job opportunity. DOL assesses this information and issues a determination of the prevailing wage for the occupation in the intended area of employment.

The employer must agree to pay the foreign national at least the prevailing wage when the foreign national receives lawful permanent residence (a “Green Card”) based on the Labor Certification.

Recruitment — The employer must conduct and document recruitment efforts for the job opportunity in order to demonstrate that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. This involves a number of different forms of recruitment:

Mandatory Recruitment Steps — These recruitment steps are required for all Labor Certification applications:
- Job Order — Placement of a job order for a period of 30 days with the State Workforce Agency (SWA) serving the area of intended employment.
- Advertisements in Newspaper or Professional Journals — Placement of a job opening advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the type of workers likely to apply for the opportunity. Under certain circumstances, employers may use a professional journal for one of the Sundays instead of a newspaper of general circulation.
Additional Recruitment Steps for Professional Occupations — If the job opportunity is for a professional occupation, the employer must also complete three additional recruitment steps from the list below:
- Job Fairs — Recruitment at a job fair.
- Employer’s Website — Recruitment on the employer’s own website.
- Job Search Website — Recruitment on a job search website other than the employer’s own website.
- On-Campus Recruiting — On-campus recruitment through a college or university.
- Trade or Professional Organizations — Recruitment through newsletters or trade journals for the occupation.
- Private Employment Firms — Recruitment through a private employment firm or job placement agency.
- Employee Referral Program — Recruitment through an employee referral program with incentives.
- Campus Placement Offices — Recruitment through a university’s or college’s job placement office.
- Local and Ethnic Newspapers — Recruitment through advertisements in a local or ethnic newspaper.
- Radio and Television Advertisements — Recruitment by radio or television advertisement.

The employer must document that it received job applications through these recruitment methods, that it reviewed the applications and contacted applicants that appeared qualified for the job opportunity, and that it determined each applicant was not able, willing, qualified, or available for the job opportunity. The employer must retain this documentation for five years from the date of filing the Labor Certification application with DOL.

Application for Labor Certification (PERM) — The Labor Certification application is submitted to DOL on the online Form ETA 9098. The form requires the employer to attest to the duties and minimum qualifications for the job opportunity, the recruitment steps it undertook, and that it did not identify any able, willing, qualified, and available U.S. workers for the position during recruitment.

Potential Audit — While supporting documentation is not submitted to DOL at the time of filing the Labor Certification application, DOL has the authority to conduct an audit on a pending application. If DOL initiates an audit, the employer must submit documentation demonstrating it complied with all applicable regulations and policies.

Labor Certification Decision — DOL will notify the employer when it approves or denies the Labor Certification. An approved Labor Certification allows the employer to file a Form I-140 (Immigrant Petition for Alien Worker) with USCIS on behalf of the foreign national, which will classify the foreign national for an immigrant visa preference category. The Form I-140 petition must be filed with USCIS within 180 days of the Labor Certification approval.

For more information regarding the PERM process, check out BAL’s explainer video that describes the PERM application process, including required information/documentation, case preparation, filing with the government, and approval.

What is the timeline for obtaining a PERM Labor Certification?

The timeline for obtaining an approved Labor Certification depends on a number of factors, including:

Timeline for Recruitment — For professional occupations, the mandatory job order with the State Workforce Agency must be posted for at least 30 days. In addition, only one of the three additional recruitment steps can take place solely during the 30-day period before filing the Application for Labor Certification.
Timeline for Filing the Application for Labor Certification — The Labor Certification application must be filed with DOL within the 180 days from the time the recruitment began.
DOL’s Processing Times — DOL generally processes prevailing wage determination requests and Labor Certification applications in the order it receives them. The processing time may vary depending on the number of requests and applications DOL has pending at any given time. Current processing times for prevailing wage determination requests and pending Labor Certification applications can be viewed on DOL’s website.
Whether DOL Conducts an Audit — If DOL selects the Labor Certification application for audit, it will request additional documentation to demonstrate that the employer complied with all applicable requirements. This significantly delays the Labor Certification processing time.

Click here to access BAL’s PERM Application Process Video for what to expect during your PERM process.

IMMIGRANT PREFERENCE CATEGORIES

What is the EB-1 First Preference category?

EB-1 or First Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-1 First Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of foreign nationals who may qualify for the EB-1 category:

Individuals of Extraordinary Ability (EB-1A) — This includes those who have sustained national or international acclaim in the sciences, arts, education, business, or athletics.
Outstanding Professors and Researchers (EB-1B) — This includes those who have received recognition for outstanding achievements in a particular academic field.
Multinational Managers or Executives (EB-1C) — This includes those who have been employed as a manager or executive for a firm or company outside the U.S. and will be employed as a manager or executive for a related employer in the U.S.

What is the EB-2 Second Preference category?

The EB-2 or Second Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-2 Second Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

Foreign nationals may qualify for the EB-2 Second Preference category on the basis of their:

Advanced Degree — This includes foreign nationals who possess at least an advanced degree (a master’s degree or higher); or
Exceptional Ability — This includes foreign nationals with exceptional ability in the sciences, arts, or business.

This category typically requires a job offer from an employer and a PERM Labor Certification from the U.S. Department of Labor (DOL), but this requirement can be waived for foreign nationals who qualify for a National Interest Waiver (NIW).

What are the requirements for the EB-2 NIW category?

The EB-2 NIW category includes foreign nationals who:

Hold an advanced degree or claim exceptional ability in the sciences, arts, or business; and
Qualify for an exemption of the requirement of a job offer, and thus a PERM Labor Certification, on the basis of the U.S. national interest.

This category allows self-sponsorship. An employer may file Form I-140 on behalf of the foreign national, but a foreign national may also file Form I-140 on their own behalf as a “self-petitioner” without an offer of employment from a U.S. employer or a PERM Labor Certification from the DOL.

The EB-2 NIW is a highly specialized Green Card category for foreign nationals who can show that their work in their field is of “national interest” to the U.S.

In addition to demonstrating that the foreign national is a professional holding an advanced degree or of exceptional ability in the sciences, the arts, or business, to receive the EB-2 NIW approval, the foreign national must demonstrate that they meet the following three criteria:

The employee’s proposed endeavor has both substantial merit and national importance.
The employee is well-positioned to advance the proposed endeavor.
On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a PERM Labor Certification for the employee.

What is the EB-3 Third Preference category?

EB-3 or Third Preference category is an employment-based immigrant classification. Foreign nationals who qualify for the EB-3 Third Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are three types of circumstances that may qualify for the EB-3 Third Preference category:

Skilled Workers — This includes foreign nationals who will be employed in a job that requires at least two years of training or work experience and is not of a temporary or seasonal nature.
Professionals — This includes foreign nationals who will be employed in a job that requires at least a U.S. bachelor’s degree or foreign equivalent, and who are members of a “profession.”
Unskilled Workers (Other Workers) — This includes foreign nationals who will be employed in a job that involves unskilled labor requiring less than two years of training or work experience and is not of a temporary or seasonal nature.

Click here for more info on upgrading or downgrading between EB-2 and EB-3 categories.

What is the EB-4 Fourth Preference category?

EB-4 or Fourth Preference category is an employment-based immigrant classification for “special immigrants.” Foreign nationals who qualify for the EB-4 Fourth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are a range of “special immigrants” who may qualify for the EB-4 Fourth Preference category:

Religious workers;
Special immigrant juveniles;
Broadcasters;
G-4 International Organization or NATO-6 employees and family members;
International employees of the U.S. Government abroad;
Armed forces members;
Panama Canal Zone employees;
Certain physicians;
Afghan and Iraqi translators; and
Afghan and Iraqi nationals who have provided faith service in support of U.S. Operations.

What is the EB-5 Fifth Preference category?

EB-5 or Fifth Preference category is an employment-based immigrant classification for investors. Foreign nationals who qualify for the EB-5 Fifth Preference category are eligible to apply for lawful permanent residence (also known as a “Green Card”).

There are two types of requirements to qualify for the EB-5 Fifth Preference category:

Make the necessary investment of capital in a commercial enterprise in the U.S.; and
Plan to create or preserve the required full-time jobs for qualified U.S. workers.

Green Cards: Adjustment of Status & Consular Processing Basics

What is the difference between adjustment of status and consular processing?

After a foreign national is the beneficiary of an approved immigrant visa petition and an immigrant visa number is immediately available, there are two ways to apply for lawful permanent resident status (also known as a “Green Card”).

For example, an H-1B worker in the U.S. may pursue adjustment of status to a lawful permanent resident after being sponsored for an immigrant visa by his or her employer. The H-1B worker would file an application requesting that U.S. Citizenship and Immigration Services (USCIS) adjust his or her status to that of a lawful permanent resident.

Consular processing is the process of applying for an immigrant visa outside the U.S. in order to be admitted as a lawful permanent resident. Consular processing requires the applicant to depart the U.S. and attend an interview with the U.S. Department of State Embassy or Consulate outside the U.S. in order to obtain an immigrant visa authorizing admission to the U.S. as a lawful permanent resident.

For example, the same H-1B worker in the U.S. may pursue lawful permanent residence through consular processing. However, in order to return to the U.S. as a lawful permanent resident, the H-1B worker would file an immigrant visa application with the U.S. Department of State, attend a visa interview at a U.S. Consulate or Embassy outside the U.S., obtain an immigrant visa, and return to the U.S. to be admitted as a lawful permanent resident.

What is the process for adjustment of status?

An application for adjustment of status is submitted to USCIS on a Form I-485 (Application to Register Permanent Residence or Adjust Status). In general, foreign nationals may not apply for adjustment of status until a visa number is available for the specific immigrant visa category. The U.S. Department of State’s monthly Visa Bulletin determines when foreign nationals are eligible to file a Form I-485 application with USCIS based on their priority date.

After filing the Form I-485 application, applicants must attend a biometrics appointment at a USCIS Application Support Center to provide fingerprints, a photograph, and signature. USCIS will review the Form I-485 application and notify the applicant if additional documentation and/or an interview is required. After the additional documentation has been submitted and/or the interview has occurred, USCIS will determine whether to grant or deny the application. If USCIS grants the application, it will mail an approval notice to the foreign national and adjust the status of the individual to a lawful permanent resident. USCIS will mail the Green Card at a later date.

Check out BAL’s explainer video that describes the process of completing the USCIS interview stage of the Adjustment of Status application, including required information/documentation, questions that may be asked, and the events following the interview appointment.

What is the process for consular processing?

Consular processing requires the foreign national to wait for notification from the U.S. Department of State’s National Visa Center (NVC) that he or she is eligible to submit an immigrant visa application. When NVC determines that an immigrant visa number is about to become available, it will notify the beneficiary to submit the required fees and supporting documentation for the immigrant visa application. When the foreign national’s priority date is current according to the most recent Visa Bulletin, the U.S. Consulate or Embassy will contact the foreign national to schedule an immigrant visa interview.

After the foreign national attends the immigrant visa interview, the U.S. Department of State will determine whether to grant or deny the application. If the U.S. Department of State grants the application, it will provide the foreign national with a sealed visa packet that they must provide to U.S. Customs and Border Protection (CBP) at a U.S. port of entry. CBP will review the documentation contained in the visa packet and determine whether to admit the foreign national to the U.S. as a lawful permanent resident. If the individual is admitted to the U.S. as a lawful permanent resident, he or she will receive a Green Card in the mail within a few weeks of entering the country.

BAL can help!

Looking for expert immigration assistance to create and manage a customized and strategic immigration program for your company? Contact us now.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.

In recent years, several U.S. states and localities have begun to introduce pay transparency laws with the aim of reducing pay inequities and closing the gender wage gap. There are notable differences among these laws, as some require only disclosure upon request by a candidate while others require disclosure of wage ranges on all job postings themselves. These laws introduce an entirely new set of risks to be evaluated and decisions to be made by internal and external counsel for any employer using the PERM recruitment process to extend permanent job offers to foreign nationals.

With a few exceptions, a company wishing to permanently employ a foreign worker in the United States must proceed through the PERM process. This process works first to identify whether a minimally qualified U.S. worker may be available and willing to accept a given role. A company may proceed in offering that role to a foreign worker only if a minimally qualified, willing and available U.S. worker is not found. PERM regulations require employers to post recruitment through various channels mandated by the Department of Labor, but they do not require employers to post wage ranges or disclose benefits in public job postings.

However, an employer going through the PERM process is required to seek a prevailing wage request for each sponsored job from the DOL. At times, the prevailing wage issued by the DOL may be higher than the lower end of the company’s actual wage range. In these situations, a company may proceed with their PERM process but cannot offer a rate lower than the prevailing wage for that particular role.

This situation introduces an interesting conundrum for employers seeking to simultaneously comply with PERM regulations and state- or locality-driven laws on pay transparency. For instance:

Washington state and California require any employer with 15 or more employees, with at least one employee in their respective state, to disclose the salary range within the job posting for any position that can be performed in that state. Washington state further requires a description of all benefits and other compensation offered.
Colorado similarly requires employers to include salary ranges and provide a general description of benefits for any job to be performed or that can be performed remotely from Colorado; however, this requirement applies to any employer that has at least one employee within the state.
Ithaca, Jersey City, New York City, and Westchester County have all enacted variations of a similar wage transparency law, requiring employers with four or more employees to post salary ranges for any job posting where the position can be performed, in whole or in part, by an individual within their respective jurisdictions.

First, it is vital for employers to engage their employment counsel to determine whether a particular wage transparency law applies to them as an employer or to a particular position for which they are recruiting. In many cases, employers must now consider the chosen home addresses of their current employees as well as the candidate pool for the position for which they are hiring. This means that a particular job posting may be subject to wage transparency laws for multiple jurisdictions. In addition, the employer must also work with their employment counsel to determine what constitutes a “good faith” range of the minimum and maximum pay for the position. While some employers provide a very broad range, encompassing actual minimums and the maximum conceivable amount they might be willing to pay, others have provided a scale along the bell curve, or any variation between.

After the wage ranges are vetted and approved by employment counsel, employers are then faced with the challenge of complying with federal PERM regulations, which can sometimes run in direct opposition. For example, while wage transparency laws require employers to post good faith wage ranges, PERM regulations do not permit the lower end of that range to fall short of the prevailing wage determination.

Colorado was the first state to mandate pay transparency in public job postings and quickly recognized the inherent contradiction between their wage transparency law and federal PERM regulations. This led to an informal conclusion that state wage transparency laws would not be enforced in the context of PERM recruitment. However, even this introduces risks for employers, as major employers have been charged recently with conducting PERM recruitment in a manner that is completely at odds with normal recruitment practices. Advertising for PERM roles with different wage content than a company’s normal postings may open it up to additional scrutiny by the state or by the DOL or even the Department of Justice.

As more states and localities enact varied pay transparency laws, the complications will continue to increase. Companies’ in-house counsel, immigration and global mobility teams must take care to partner closely with both their employment counsel and their immigration counsel to ensure that they are implementing practices that comply with both state and federal laws in this space.

Stephanie S. Pimentel is a BAL Partner in BAL’s Dallas headquarters and Asha George is a Senior Associate in BAL’s New York City office.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.