Obtaining Permanent Residence Based on Employment
The process for obtaining permanent residence based on employment is comprised of three phases: the Labor Certification, now called PERM, the visa petition, and the application for permanent residence.
What is PERM?
Affective March 28, 2005, the Department of Labor’s Employment and Training Administration (ETA) published new regulations guiding the requirements and processes for an employer to obtain a permanent labor certification for a foreign worker.
A permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. In order for a permanent labor certification to be approved, the Department of Labor (DOL) must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
How do I Apply for PERM?
In order for a United States employer to hire a foreign worker permanently, the employer first files an Alien Employment Certification, ETA Form 9089. The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. Once the application for Alien Employment Certification is approved by the DOL, the approval should then be filed with the USCIS service center with form I-140, Immigrant Petition for Alien Worker.
An application for Permanent Employment Certification can be filed either electronically or by mail. However, the Department of Labor recommends that the employer files electronically. Electronic filing is faster and will ensure that the employer has provided all required information as an electronic application cannot be submitted if the required fields are not completed.
In order to file electronically, the Online Permanent System requires an employer to set up an individual account. The employer must go to www.doleta.gov and set up a profile by selecting the appropriate profile option in the Online System. After registering and establishing an account, the employer can fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
If an employer chooses to file by mail it is sent to, National Processing Centers that have been established in Atlanta and Chicago. The employer must submit paper applications to the processing center with responsibility for the state or territory where the job opportunity is located. The address and contact information for each National Processing Center and the states and the territories within their jurisdictions are provided on our Contact Information page.
Requirements of PERM
Pre-Filing Recruitment Steps:
All employers filing the ETA Form 9089, except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupation, and sheepherders, must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
Recruitment Requirements for Professional Careers
If the occupation in question is one that a bachelor’s or higher degree is a customary requirement, the employer must recruit under the standards set forth in 20 CFR 656.17(e)(1), published in Appendix A to the preamble of the final PERM regulation.
There are two steps in the recruitment efforts:
1. Employer must place a job order with the SWA for a period of 30 days AND
2. Two print advertisements must be placed on two different Sundays in a paper of general circulation. If the job offer requires experience and an advanced degree, and a professional journal would normally be used to advertise the job opportunity, the employer may place an advertisement in the professional journal in lieu of one of the Sunday advertisement.
Recruitment steps must be taken at least 30 days, but no more than 180 DAYS, before the filing of the application.
Additional Recruitment Steps
The employer must use 3 additional recruitment steps from a list of 10 alternatives provided by the PERM regulations. These include:
3. Job fairs
4. Employer’s website
5. Job search website other than the employer’s
6. On-campus recruiting
7. Trade or professional organizations/publications
8. Private employment firms
9. Employee referral programs with incentives
10. Campus placement offices
11. Local and ethnic newspapers
12. Radio and television advertisements
Recruitment Requirements for Nonprofessional Careers:
If the occupation does not normally require a bachelor’s or higher degree, the employer can recruit under the requirements for nonprofessional occupation at 20 CFR 656.17(e)(2). The regulations do not prohibit employers from conduct more recruitment than is specified for such occupations.
At a minimum, the employer must:
1. Place a job order with the local SWA serving the area of intended employment for a period of 30 days; and
2. Place two Sunday newspaper advertisements.
3. The job order and newspaper advertisement must be placed at least 30 days prior to, but not more than 180 days before, the filing of the labor certification application.
Recruitment must take place between 30 and 180 days prior to filing. However, in the case of a professional, one out of the three additional steps may take place within 30 days of the filing of the labor certification application.
4. The employer must intend to hire the foreign worker as a full-time employee.
5. There must be a bona fide job opening available to U.S. workers.
6. The job requirement must adhere to what is and may not be tailored to the worker’s qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
7. Prevailing Wage
The employer must pay at least the prevailing wage for the occupation in the area of intended employment. However, the prevailing wage must be paid after the application for LPR has been approved and not until that time.
Example: If the prevailing wage is $50,000 but the employer only wants to pay $40,000, the employer only has to start paying the higher prevailing wage once the LPR application has been approved.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.
The employer may obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment prior to filing ETA Form 9089.
8. Signature Requirement
Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
Applications submitted by mail must contain the original signature of the employer alien, and preparer, if applicable when they are received by the processing center.
If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.
After approval of the labor certification, the employer must file an “Immigrant Petition for an Alien Worker” with the U.S. Citizenship and Immigration Services (USCIS), Form I-140. The employer must then attach the certified ETA Form 9089 to a completed USCIS Form I-140, along with the appropriate fees, and submit the package to the appropriate USCIS Service Center. The petition is filed by the employer on behalf of the foreign worker and must include the approval labor certification and other USCIS specified documentation.