What is Labor Certification?

David Sturman

One means of obtaining permanent residence in the U.S. is through the petition of an American employer.  The most common route for an employment-based Permanent Resident petition adds an initial step to the process, and that is the Labor Certification application.  The Labor Certification application involves the Department of Labor, (DOL). By approving a labor certification (LC) request, the Employment and Training Administration (ETA) of the DOL certifies that:

  • There are no U.S. workers who are able, willing, qualified and available to accept the job,
  • at the prevailing wage for that position,
  • In the geographic location of intended employment, and
  • Hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employers file an ETA Form 9089 under the LC program named PERM.

The Labor Certification process requires that your employer test the U.S. labor market for a specific position at the company to see if a qualified, willing, and able U.S. worker is available to fill the position. If a qualified U.S. worker is not found based on the Department of Labor mandated recruitment steps, the company is able to file the Labor Certification application with the Department of Labor (DOL). The DOL’s role is to protect U.S. workers. Before approving the application, the DOL must make sure that the employer’s job requirements are appropriate for the position, that the proper wage is being offered, and that the test recruitment is conducted properly.

Under the Labor Certification recruitment process, the petitioning employer must show that it has tested the U.S. job market and was unable to find a suitable qualified candidate. Therefore, the employer can justify providing the position to the foreign worker.  During the test recruitment process the employer is not required to hire any qualified applicant. However, if during the recruitment process, the employer encounters a qualified American worker who meets the minimum requirements for the position, is available to work the hours offered, desires the position, and is otherwise qualified for the position, it would be difficult to secure a Labor Certification approval.

Hence, the Labor Certification process can be tricky. In the past the Labor Certification process was lengthy, slow and complicated.  In recent years DOL revamped the Labor Certification process and implemented the PERM (Program Electronic Review Management) Labor Certification system. PERM is an online, attestation-based system that has cut the processing time of Labor Certification applications from three-to-four years down to just a few months.  Instead of supervising the recruitment of every application, under PERM, the DOL relies on the good faith of the employer to honestly conduct recruitment. The DOL relies on an audit system to occasionally test petitioning employer to confirm adherence to the mandated recruitment process.

AT the Law Office of David M. Sturman, we are aware of the mandates of the Perm Labor Certification process and we guide petitioning employers throughout the process to reduce the burden on busy companies. We work very closely with the employer to determine what the exact hiring requirements are at the company for the position and to create the appropriate recruitment program.

PERM Filing Procedures

  • Complete all recruitment activities
  • Request a prevailing wage determination from SWA. Submit the information on Form 9098 including the prevailing wage, tracking number, the SOC/O* (OES) code, occupation title, skill level, wage source, determination date and expiration date. Note that under PERM, the salary offered to the foreign worker must be equal to or higher than the prevailing wage.
  • Complete Form 9098 – Application for Permanent Employment Certification, including detailed job duties and requirements on education, work experience, training/certification, and specific capabilities. A statement of the prospective foreign worker’s qualifications is also required.
  • Retain all supporting documentation and records for 5 years. They are not required in the application, but must be available in case of an audit or otherwise requested by a certifying officer.
  • Register an employer account with DOL’s online system at www.plc.doleta.gov.
  • File the PERM application electronically through DOL’s designated website. An employer may file the case by mail, but e-filing is strongly recommended.

Receive a decision within a few months. If the case is randomly selected for audit, it may take several more months to be certified

Your Preference Category Matters:

There are essentially two critical employment based preference categories, Second Preference and Third Preference.  Typically Second Preference employment based petitions are limited to positions that require, at a minimum a Master’s Degree, a Bachelor’s Degree and five years of related experience or the equivalent.  The benefit of having a Second Preference employment based petition is the priority in immigrating. For most countries, falling under a Second Preference petition category will save years of waiting time and can lead to permanent residence in most cases in less than a year.

Third Preference employment based petitions are reserved for positions that require at a minimum two years of related experience, a Bachelor’s degree, or the equivalent.  Most positions will fall under this category.  Due to an oversubscription of applicants under this category, the waiting time for most countries can be quite long at present-up to several years.

What determines the preference category is both the requirements of the job and the qualifications of the foreign worker. To qualify under either preference category the employer must require at least the minimum amount of education and/or experience for that Preference category and the foreign worker must possess the required qualifications.

Priority Date:

The date on which the PERM Labor Certification application is filed with the DOL will become the foreign worker’s Priority Date. The Priority Date will follow the applicant throughout the Permanent Residence process and determines the applicant’s place in line for permanent residence.

How long does it take to receive PERM approval?

Although processing times vary, approvals can be received in as little as a few months.

What  is a Priority Date?

A priority date is the filing date of a labor certification. It is used by USCIS and the Department of State (DOS) to determine whether a case is eligible for adjustment of status, or whether a visa number is available to this case.

LC vs. LCA

LC (Labor Certification) is completely different from LCA (Labor Condition Application). An LCA is required in an H1B petition for temporary professional worker. (Form I-129, Petition for a Nonimmigrant Worker).

Labor Certification Validity Period

Labor certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 immigrant visa petition. Once the petition is approved, the foreign worker can immigrate once his or her priority date becomes available as determined by the monthly Visa Bulletin available at www.visas.state.gov.

Recruitment required for PERM.  Before filing a PERM LC electronically, an employer must conduct certain recruitment activities. They must include:

  • Two print advertisements (Two consecutive Sunday edition newspaper ads, or one Sunday ad and one professional journal ad if applicable)
  • A job order from the SWA (State Workforce Agency) for 30 days or more
  • An on-site job posting for 10 consecutive business days
  • For professional occupations, at least three additional recruitment methods from the following:
    • Employer’s website
    • Job posting website other than employer’s
    • Job fairs
    • Headhunter agencies
    • Employee referral program with incentives
    • On-campus recruiting
    • Campus placement office
    • Local or ethnic newspapers
    • Trade or professional journals
    • Radio or TV ads

All recruitment must take place within the 30 – 180 day timeframe prior to filing a PERM application, except for one of the three additional steps required for professional occupations which is the sole activity that can take place within 30 days of filing.

An advertisement needs to include a description of the vacancy, the employer name, geographic location, and contact information.

Thousands of foreign workers immigrate to the U.S. yearly under the PERM labor certification process. It is an excellent way for persons to obtain permanent residence based upon a job offer in the U.S. There are literally thousands of different job titles that may qualify for labor certification from accountant to zoologist.  You don’t need to be a professional to qualify. Many foreign skilled workers such as mechanics, cooks, care givers, CNA’s and many others have qualified.