Key Permanent Visa Concepts: Labor Certification Concepts

PERM Labor Certification Processing

There are four steps involved in securing U.S. lawful permanent residence via PERM Processing from the Labor Market test until issuance of the green card.

1. The Labor Market Test
2. Filing Form ETA 9089 PERM Labor Certification Application
3. Filing Form I-140 Immigrant Visa Petition
4. Filing Form I-485 Adjustment of Status or Consular Processing of Immigrant Visa

The Labor Market Test

Under PERM Labor Certification rules, an employer must conduct a test of the local labor market where the job, or proposed job, is located. U.S. Department of Labor (DOL) rules mandate the following labor market test:

1. Obtain a Prevailing Wage Determination from the State Workforce Agency
2. Publication of an advertisement in two (2) Sunday editions of a local major newspaper
3. Posting of a notice at the work site for ten (10) consecutive business days
4. Posting of a 30 day job order with the State Workforce Agency
5. If the position is professional, as defined in the DOL regulations, three additional steps from the following additional ten options are required:
   1. Recruitment at Job fairs
   2. Posting a Notice on the employer’s web site
   3. Posting an advertisement on a job search web site other than the employer’s
   4. On-Campus Recruitment
   5. Publication of an advertisement in a trade or professional publication specific to the industry
   6. Posting a job opening with a private employment firm
   7. Posting a notice at a campus placement office
   8. Publication of notice using the employer’s in-house incentive referral program
   9. Publication of an advertisement in a local or ethnic newspaper
   10. Publication of an advertisement on radio or television.

Filing Form ETA 9089 PERM Labor Certification Application

After the labor market test is completed, the employer electronically files a Form ETA 9089 Application for Permanent Employment Certification with the DOL. The date an application is filed is the employee’s “Priority Date.” The priority date is utilized to determine a person’s place in the immigration quota line and when an immigrant visa number can be allocated to an individual.

During review of a PERM application, if the DOL wishes to audit an application, the DOL gives notice to employers to provide the requested audit documentation within 30 calendar days. Upon receipt of the requested audit documents, DOL continues processing.

When the PERM application is approved, the DOL issues a certified Form ETA 9089 which is mailed to the attorney of record or the employer. Upon receipt of a certified Form ETA 9089, an employer must file an I-140, Immigrant Visa Petition and all supporting evidence with the USCIS within 180 days of the DOL certification.

Issue - Company’s Ability to Pay Wage Offered

One important consideration in processing an I-140 petition is the ability of the petitioning company to pay the wage offered in the petition. An employer is not obligated to pay the wage offered in the I-140 petition to the foreign national employee until U.S. lawful permanent resident status is granted.

However, a petitioning company must submit copies of recent tax returns, annual reports or audited financial statements to prove its ability to pay the wage offered. A company is determined to be able to pay the wage offered if one of the following tests is satisfied:

1. The foreign national employee is already employed with the petitioning company and is being paid at least the wage offered in the I-140 petition
2. The petitioning company’s net income exceeds the wage offered in the I-140 petition to the foreign national employee
3. The petitioning company’s net current assets exceed the wage offered to the foreign national employee.

A petitioning company is obligated to prove its ability to pay the wage offered from the date the foreign national employee’s “priority date” is established until the foreign national employees is granted U.S. lawful permanent residence status.