The PERM labor certification process is the first stage of the employment-based application for legal permanent residency where the foreign national is not eligible for a waiver of the PERM requirement. These cases where the PERM is waived and the Form I-140 is filed first include the EB-1A Extraordinary Ability, EB-1B Outstanding Researcher and Professor, EB-1C Multinational Executive or Manager and the EB-2 National Interest Waiver.
It should be emphasized that the foreign national beneficiary is not allowed to make any payments for the PERM labor certification and the employer must exclusively incur all costs related to it. This includes the advertising and recruitment fees as well as the attorney’s fees. Also, the employer engaged in the labor certification process will be prohibited from withholding from the beneficiary’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process.
There are two or three stages to obtaining legal permanent residency through the PERM labor certification process: (1) the labor certification application (2) the immigrant visa petition; and (3) the application to adjust status or consular process abroad for the immigrant visa. The immigrant visa petition and application to adjust status may be filed concurrently in cases where a visa number is immediately available, thereby eliminating one step.
In the labor certification stage, first the employer obtains a prevailing wage determination from the Department of Labor to ensure that it is offering the requisite prevailing wage. Then the employer advertises the position and responds to any U.S. applicants to the position. If no qualified, willing, able and available U.S. workers respond, then the employer, through the attorney, files the labor certification application with the U.S. Department of Labor (DOL) electronically. The DOL may then certify the application or perform an audit to ensure that the employer has complied with the PERM recruitment obligations and/or to determine if there are no other deficiencies in the labor certification application, such as unduly restrictive requirements.
If the labor certification is certified, then we may proceed to the second stage, where the employer files the immigrant visa petition. In support of the immigrant visa petition (Form I-140), the employer must submit evidence of its ability to pay the proffered wage as of the date of the filing of the labor certification application (priority date) and continuing up until the date of filing the I-140. Also, the beneficiary must submit evidence that he/she met the minimum education and experience requirements at the time the labor certification application was filed (diplomas, transcripts, education equivalency evaluations, employment experience letters, etc.).
If an immigrant visa number is immediately available and the beneficiary is in the US and eligible to file the application to adjust status to legal permanent residence (Form I-485), then the beneficiary may file the I-485 concurrently with the employer’s Form I-140 immigrant visa petition. Approximately six months after filing the application for legal permanent residence the beneficiary may receive universal work authorization (employment authorization document or EAD). Thus, if the beneficiary’s current nonimmigrant status is expiring at this point, they could continue pursuant to the universal work authorization.
If the I-485 is approved, then the beneficiary must report to work for the sponsoring employer. There is no specified period of time during which the beneficiary must remain with the sponsoring employer, although six months is a relatively safe period if there are no extraordinary or changed circumstances preventing the beneficiary from working with the sponsor.
If there is a visa number backlog at the time the PERM labor certification is approved, then the employer files the Form I-140 but the beneficiary does not file for adjustment concurrently. Instead, they must wait for a visa number to become available. Also, once the PERM labor certification or Form I-140 immigrant visa petition has been pending at least one year, even if it is not approved, then the beneficiary may be able to obtain additional years in H-1B status beyond the initial six-year period until the application for permanent residence is finally approved.
The beneficiary must restart the PERM process if they leave the sponsoring employer before the I-485 is approved. The one exception is Form I-485 portability, which states that if the Form I-140 immigrant visa petition is approved and the Form I-485 application to adjust status has been pending for at least 180 days, then the beneficiary can move to a new employer in the same or similar occupation and not have to restart the PERM process. That new employer would file the Form I-485 Supplement J to sponsor the beneficiary.