by Natalie McQuilkin

Are you a business owner looking to hire talented workers outside of the United States?

Or are you a foreign citizen dreaming of traveling to the United States to seek new opportunities?

Today on our blog, we would like to share with you information about an immigration program that could make all of this possible: the Program Electronic Review Management (PERM) labor certification, which allows U.S. companies to hire from outside the United States. Better yet for those looking to come here: PERM labor certification could create a path for you to obtain U.S. residency.

To begin with, what are PERM sponsorships?

In March 2005, the Department of Labor (DOL) created the PERM labor certification. This certification requires a “sponsor,” or an employer, who seeks to hire a foreign worker because they can prove that their company cannot obtain qualified, willing, or available US citizen workers in their area, despite recruitment efforts.

The steps of the PERM labor certification

The PERM labor certification is divided into three steps:

1) obtaining the employment certification,

2) file Form I-140,

3) by filing Form I-485.

Let's briefly discuss each step:

Obtaining the PERM Labor Certification:

· Establish a prevailing wage

To obtain PERM labor certification, sponsors must establish what is called a “prevailing wage,” or the average amount paid for the specific job they are looking to hire for in their area. Sponsors must retrieve prevailing wage information by submitting the DOL Form ETA-9141, Application for Prevailing Wage Determination, to the National Prevailing Wage Center. This form requires the sponsor to provide information on where the job will be located, what qualifications are required for the job, and what the job will entail. Once the National Prevailing Wage Center sends the employer the prevailing wage based on these factors, the employer can move on to the next step: job advertising and recruitment.

· Job advertising and recruitment

The PERM labor certification requires employers to demonstrate that they have attempted to hire US citizen workers within the six months prior to applying for the PERM labor certification. Employers must place a job order with the State Agency

of the Workforce for 30 days and place a job advertisement in two consecutive Sunday editions of a local newspaper. Where these advertisements should be placed is something you must discuss with a business immigration professional, because the rules change depending on the role you are hiring for. After making the effort to recruit strong U.S. citizen candidates, employers can submit evidence to the DOL that they tried, and that, instead, they would like to sponsor a foreign worker for the position. If the DOL approves the certification, then employers can move on to the next step, which is filing Form I-140.

Form I-140

Once the PERM labor certification is approved by the DOL, it remains valid for 180 days. However, simply having the PERM labor certification does not allow foreign workers to work legally in the United States. The next step is for the sponsor to file Form I-140, the Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). To complete this form, a sponsor must provide financial information demonstrating that they can pay the prevailing wage to the foreign candidate they wish to hire. The sponsor will also submit documents proving that their candidate has the necessary qualifications for the position, such as academic records, recommendation letters from former employers, and training certifications.

Form I-485

If the candidate already lives in the United States on a work visa, they are ready to file their Form I-485, Application to Register Permanent Residence or Adjust Status, as soon as USCIS approves their Form I-140. After reviewing the application, USCIS will schedule an interview with the candidate to ask questions about their personal and employment background. They will then issue a green card. However, if the candidate lives in a foreign country when they receive their approved Form I-140, they will first have to submit their application to the National Visa Center (NVC) and wait to receive an appointment. The NVC will review the application, then schedule an interview for the candidate at their local United States consulate, where they will ask the same background questions. If this interview goes well, the candidate will receive their green card and be able to immigrate to the United States.

Pros and cons of PERM labor certification:

Although PERM can be an incredible resource for employers and foreign workers alike, the program is not without its drawbacks. Let's analyze these:

Drawbacks of PERM labor certifications

Waiting times: As of June 2023, the DOL takes nearly 300 days to review the PERM labor certification application and nearly 500 days to audit the application. Form I-140 can also take several months to be approved. However, for an additional fee, USCIS will process the application in as little as 15 days. Finally, candidates will have to wait several additional months for the approval of their I-485 application.

USCIS also only accepts a limited number of petitions for unskilled workers, meaning workers who have less than two years of experience or training. Each year they accept a maximum of 10,000 petitions for these positions.

Benefits of PERM sponsorships

On the other hand, PERM sponsorships come with many benefits. Workers benefit from the fact that USCIS requires employers to pay the application filing fees. If they have a valid work visa, they can begin working for their employer as soon as they receive the labor certification from the DOL, without waiting for USCIS to approve Form I-140. Additionally, for certain types of visa holders, once their I-140 is approved, their children and spouses can also apply for visas.