Permanent Labor Certification
(Green Card through
A permanent labor certification issued by the Department of Labor (DOL)
is the first step to allow an employer to hire a foreign worker to work
permanently in the United States. In most instances, before the U.S.
employer can submit an immigration petition to the Department of Homeland
Security's U.S. Citizenship and Immigration Services (USCIS), the employer
must obtain an approved labor certification request from the DOL's
Employment and Training Administration (ETA). The 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.
The DOL processes Applications for Permanent Employment Certification. The
date the labor certification application is accepted for processing is
known as the filing date and is referred to by USCIS and the Department of
State as the priority date. After the labor certification application is
approved by the DOL, it should be submitted to the appropriate USCIS
service center with a From I-140, Immigrant Petition for Alien Worker.
Applications filed on or after March 28, 2005 must be filed using the new
electronic PERM (Permanent Online System Web site) was developed for the
Department of Labor (DOL), as well as process and adhere to the new PERM
regulations. In order for the Labor Certification Application to be
approved, the following qualifying criteria must be met:
- The job opportunity must be for a full time, permanent position.
- There must be a bona fide job opening available to U.S. workers.
- Job requirements must adhere to what is customarily required for the
occupation in the U.S. and may not be tailored to the foreign worker's
qualifications. The employer must pay at least the prevailing wage for the
occupation in the area of intended employment.
Process for Filing
- Application. The employer must complete an Application for Permanent
Employment Certification. In the application, the employer must outline
the recruitment undertaken as well as describe the job duties, educational
requirements, training, experience, and other special capabilities the
employee must possess to do the work. In addition, the foreign worker's
relevant education and work experience, if any, must be provided.
- Signature requirement. Applications submitted by mail must contain the
original signature of the employer, alien, and preparer, if applicable,
when they are received by the National Processing Center (NPC).
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.
- Prevailing wage. Prior to filing the Labor Certification Application,
the employer must request a prevailing wage determination from the State
Workforce Agency (SWA) having jurisdiction over the proposed area of
intended employment. The employer is required to include on the ETA Form
9089 the SWA provided information: the prevailing wage, the prevailing
wage tracking number (if applicable), the SOC/O*NET (OES) code, the
occupation title, the skill level, the wage source, the determination
date, and the expiration date.
- Pre-Filing Recruitment Steps. All employers filing the Labor
Certification Application (except for those applications involving college
or university teachers selected pursuant to a competitive recruitment and
selection process, Schedule A occupations, and sheepherders) must attest,
in addition to a number of other conditions of employment, to having
conducted recruitment prior to filing the application.
The employer must prepare a recruitment report in which it categorizes the
lawful job-related reasons for rejection of U.S. applicants and provides
the number of U.S. applicants rejected in each category. The recruitment
report does not have to identify the individual U.S. workers who applied
for the job opportunity.
- Audits/requests for information: Supporting documentation need not be
filed with the Labor Certification Application, but the employer must
provide the required supporting documentation if the employer's
application is selected for an audit or if the Certifying Officer
otherwise requests it.
- Retention of records. The employer is required to retain all supporting
documentation for five years from the date of filing the Labor
Certification Application. For example, the SWA prevailing wage
determination documentation is not submitted with the application, but
must be retained for a period of five years from the date of filing the
application by the employer.
- Online filing. The employer has the option of filing an application
electronically or by mail. However, the Department of Labor recommends
that employers file electronically. Not only is electronic filing, by its
nature, faster, but it will also ensure the employer has provided all
required information, as an electronic application cannot be submitted if
the required fields are not completed.
- Approvals. If the National Processing Center approves the application,
the Labor Certification Application is "certified" (stamped) by the
Certifying Officer and returned to the employer/employer representative
who submitted the application.
The USCIS Petition
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). The employer then attaches the certified
Labor Certification Application to a completed USCIS Form I-140, along
with the appropriate fees, and submits 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 approved labor certification and
other USCIS specified documentation.
Please contact the LL.M. Law Group to assist you with the Labor
Certification Application and USCIS petition.