PERM Labor Certification

The Foreign Labor Certification programs allows U.S. employers to hire temporary and permanent foreign workers. Dept. Of Labor issues labor certifications for permanent workers and with the H-1B, H-2A, H-2B, D-1 and CW-1 nonimmigrant visa programs.

A Foreign Labor Certification may contain attestations by U.S. employers regarding:

1. Numbers of U.S. workers available to undertake the employment sought by an applicant
2. Certification that the foreign worker’s employment will not have an adverse affect on the wages and working conditions of U.S. workers similarly employed and/or
3. Certification that there are insufficient U.S. workers who are willing, able and/or qualified for occupation at the offered wage in the area of intended employment.

OR

Check My Eligibility

A permanent labor certification issued by the Dept. of Labor (DOL) allows an employer to petition for and permanently hire a foreign worker in the U.S. In order to receive a certified labor certification, the employer must certify that there are not sufficient U.S. workers who are willing, able, qualified and available to accept the permanent position. Through this process, the DOL is ensuring that U.S. workers are not being adversely affected by hiring a foreign worker. The permanent labor certification process is commonly referred to as the “PERM” process.

Employer filing a permanent labor certification application on behalf of the foreign worker must follow these primary steps:

1. Obtain a Prevailing Wage Determination from the National Prevailing Wage Center by submitting the ETA Form 9141 online through the Foreign Labor Application Gateway or “FLAG” website. The ETA Form 9141 lists the employer’s description of the permanent position, the minimum requirements of the position and the work location(s). DOL will issue a Prevailing Wage Determination indicating the appropriate Standard Occupational Classification (SOC) code for the position and the prevailing wages, dependent on the work location(s).
2. Conduct the Labor Market Test to determine if there are any able, willing, available and qualified U.S. workers.
3. File the ETA Form 9089, Application for Permanent Employment Certification, with the DOL through the FLAG website. The ETA Form 9089 can only be filed after the Prevailing Wage Determination has been issued, no less than 30 days after the labor market test has been completed, and no more than 180 days since the labor market test started.

The ETA Form 9089 can only be filed online through the FLAG website at flag.dol.gov by the employer, their agent or attorney.

Previously, the SWA reviewed the description of job duties and evaluated the employer’s stated minimum requirements for the job and determined the prevailing wage. This function, along with reviewing the permanent labor certification, has been centralized with the DOL.

Today, when filing a permanent labor certification, the offered job must be posted with the state workforce agency for at least 30 days as part of the labor market test and is a required form of recruitment for all employers.

Once the ETA Form 9089 is certified by the DOL, the employer must file the Form I-140, Petition for Immigrant Worker with U.S. Citizenship & Immigration Services. The employer must submit evidence that the sponsored worker meets the minimum requirements laid out in the ETA Form 9089 and evidence that the employer can pay the offered wage.

Upon approval of the Form I-140, Immigrant Petition for Immigrant Worker, the foreign worker, their spouse and unmarried children under 21 years of age may apply for immigrant visas through consular processing if they are abroad or obtain lawful permanent residence through Check My Eligibility
Adjustment of Status in the U.S.

Yes, PERM applications or the ETA Form 9089 may be filed for unanticipated worksites throughout the U.S. When preparing the ETA Form 9141 Prevailing Wage Request and the ETA Form 9089, the employer must list the company’s HQ as the work location and indicate in the application that the actual worksite will be unanticipated locations throughout the U.S.

No, only the employer or their attorney who prepared the labor certification can check the status of the permanent labor certification application through the FLAG website.

The processing time to obtain an employment based permanent labor certification varies based on several factors, including their overall case load and other external factors. Over the past few years, the average processing time of the PERM application has ranged from 8 to 15 months.

To obtain a duplicate copy of an approved permanent Labor Certification application, the employer may attempt to request a copy from the DOL in in writing. Alternatively, when filing the Form I-140, the employer may request that USCIS obtain a duplicate copy of the labor certification directly from the DOL will not provide copies of the ETA Form 9089 to the immigrant worker.

There is no process to expedite a PERM application once it is filed with DOL. Once certified, the employer may submit the Form I-140 with an application for Premium Processing by including the Form I-907. Once Premium Processing is requested, USCIS must provide a respond within 15 business days.

The H-1B, H-1B1 and E-3 visa categories allow employers to temporarily employ foreign workers in the U.S. in specialty occupations. Before a petition can be filed with USCIS for these workers or, in the case of H-1B1 and E-3 workers, an application is submitted at the US Consulate, the employer must obtain a certified Labor Conditions Application or LCA from the DOL. In the LCA, the employer is attesting to certain requirements of the H-1B, H-1B1 or E-3 visa program.

The LCA contains information about the work location, number of workers, wage information and period of employment.

An H-1B employer’s attestations for the LCA include:

1. Ensuring that the foreign worker is getting a fair wage (the higher of the prevailing wage or the actual wage paid to other employees in similar positions)
2. Ensuring that US workers are not being disadvantaged by the hiring of the foreign worker(s)
3. Certifying that there are no current strikes or lockouts and
4. Providing notice to all workers about the filing of the LCA.

The LCA must be submitted online on the FLAG website by the employer or their attorney. Determinations are generally made within 7 business days.

No. Employers have the option of obtaining a PWD from the National Prevailing Wage Center by filing the ETA Form 9141. Alternatively, employers can independently determine the prevailing wage by using the data compiled by Office of Foreign Labor Certification.

The H-2A Labor Certification program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

In order to obtain a temporary labor certification for the H-2A program, the employer must:

1. File a Job Order (Form ETA-790/790A) with the State Workforce Agency the services the state where the actual work will be performed. It should be submitted 75-60 calendar days before the start of work.
2. Submit the H-2A Application (Form ETA Form ETA-9142A) with the OFLC’s Chicago National Processing Center (NPC) at least 45 days before the start of work.
3. Conduct recruitment of U.S. workers when you get the Notice of Acceptance from the NPC
4. Submitting any final documentation to the NPC to obtain certification, no less than 30 days prior to the start of work.

Once the employer receives certification, they can continue to file the Form I-129, Petition for Nonimmigrant Worker with USCIS.

The H-2A certification is valid for the requested period of employment, not to exceed 1 year. As temporary or seasonal agricultural employment, the work is performed at certain seasons of the year or for a limited time period of less than one year when the employer can show that the need for the foreign worker is truly temporary.

The employer’s need for a worker must be of a seasonal nature or other temporary basis. A seasonal basis is the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may be continuous or carried on throughout the year. A temporary basis is for a limited time only or is contemplated for a particular piece of work, usually of a short duration.

The H-2B Labor Certification program establishes a means for U.S. nonagricultural employers who anticipate a shortage of domestic workers, to bring temporary nonimmigrant foreign workers into the U.S. H-2B eligibility requires that the job and the U.S. employer’s need for the foreign worker be of a temporary nature. The need must be for one year or less and can be either a one-time occurrence, seasonal, peak load or intermittent. Temporary employment should not be confused with part-time employment which does not qualify for temporary (or permanent) Labor Certification.

In order to obtain a temporary labor certification for the H-2B program, the employer must:

1. Obtain a Prevailing Wage (ETA Form 9141 and 9165) from the NPWC, preferably at least 60 days before the determination is needed.
2. Submit the H-2B Application (Form ETA Form ETA-9142B) and Job Order with the OFLC’s Chicago National Processing Center (NPC) along with the Prevailing Wage Determination
3. Conduct recruitment of U.S. workers within 14 days of receipt of the Notice of Acceptance from the NPC

Once the employer receives certification, they can continue to file the Form I-129, Petition for Nonimmigrant Worker with USCIS.

The H-2B Labor Certification application is valid for the requested period of employment, not to exceed 1 year.

The job must be temporary in nature and the need is for one year or less. The employer’s need cannot be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is either a one-time occurrence, seasonal, peak load or intermittent need.

The CW-1 nonimmigrant visa program allows employers to hire temporary workers to come to work in the Commonwealth of the Northern Mariana Islands (CNMI). The job opportunity must be full-time, to work only in the CNMI and have a validity of up 1 year, unless certification is obtained for “long-term workers”, where the validity period can be up to 3 years.

Performance of long shore work at U.S. ports by D-1 crewmembers on foreign vessels is generally prohibited with few exceptions. One such exception requires an employer to file an attestation stating that:

1. It is the prevailing practice for the activity at that port
2. There is no strike or lockout at the place of employment and
3. That notice has been given to U.S. workers or their representatives