Frequently Asked Questions about PERM Labor Certification

Q: What is the “PERM” Labor Certification?

A: The PERM Labor Certification (PERM) is a procedure for applying a Labor Certification Application. PERM took effect on March 28, 2005. This means that ALL Labor Certifications filed after March 28, 2005 must be filed using the PERM regulations. In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test job market before filing the application. If no qualified and willing US worker (US citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM Labor Certification. When filing the application, the employer or its attorney submits application form ETA 9089 either through the Internet or via mail. The main distinction between PERM and the previous Labor Certification process is that under PERM (1) Applications can be submitted online: (2) most cases will be adjudicated within 3 months; (3) no supporting documents are submitted at the time of filing. However, the supporting documents are required to be filed if the application is chosen for auditing; and (4) recruitment requirements are enhanced and standardized.

Q: What does PERM stand for?

A: PERM stand for Program Electronic Review Management process”. PERM is a new system of Labor Certification application.

Q: Which government agencies are involved in PERM Labor Certification?

A: The U.S. Department of Labor (DOL) and the individual State Wage Agencies (SWA) will be involved in the PERM Labor Certification. The USCIS is not involved in the PERM process.

Q: What role does the State Workforce Agency (SWA) play in the PERM Labor Certification process?

A: SWA will be in charge of the determination of the prevailing wage. The SWA will no longer be involved in determining PERM LC petition.

Q: What role does the Department of Labor (DOL) play in the Labor Certification process?

A: The DOL, through its two national processing centers in Atlanta and Chicago, adjudicate PERM Labor Certification applications for the whole nation. State agencies will no longer participate in adjudicating Labor Certification.

Q: What is a Labor Certification?

A: A Labor Certification is a document issued by the U.S. Department of Labor that allows an employer-petitioner to file an EB-2 or EB-3 employment-based immigration petition on behalf of the alien. It is the first step in most EB-2 and EB-3 employment-based immigration cases. Only National Interest Waivers (NIW) under EB-2 is waived of Labor Certification.

Q: What is the purpose of Labor Certification?

A: The purpose of the Labor Certification to protect U.S. worker’s employment opportunities.  In detail, the labor certification process requires the employer to test the local labor market to determine whether there is a qualified U.S. worker (permanent resident or U.S. citizen) available to fill the proposed position. Only when the employer shows that it cannot find a qualified and willing U.S. worker to take the position offered, may the employer file a PERM labor certification for an alien beneficiary who is qualified for the position. 

Q: Who needs a Labor Certification?

A: Most employment-based immigration cases require the Labor Certification as the first step. Exceptions to this rule include: EB-1s (An Alien of Extraordinary Ability or Outstanding Researchers/Professors or Multinational Transferees), EB-2 NIW (National Interest Waiver), EB-4 Religious Workers and EB-5 Immigrant Investors.

Q: Is the PERM Labor Certification process complex?

A: A PERM Labor Certification application is a very complicated procedure. It requires both substantive legal knowledge and practical experience, not only the knowledge of the new PERM process, but also experience with the traditional labor certification regulations and RIR practice. We recommend that you consult with an experienced immigration attorney if you are interested in filing a PERM Labor Certification application.

Q: Who will handle my case if I retain Z&A for a PERM Labor Certification?

A: Experienced attorneys at Z&A will handle their clients' cases individually by analyzing job openings and aliens’ qualifications, preparing job descriptions by communicating with the sponsoring employer and alien employees, obtaining prevailing wage determinations, designing advertisement strategies, arranging advertisements and internal job postings, offering employers with assistance in the recruitment process, collecting documents and additional information, preparing recruitment reports, preparing documentation for future auditing purposes, and filing and following up with the government agency for pending cases. In the event of auditing by the DOL, the attorney will carefully prepare documents and respond in a timely fashion to the DOL. Please note that only experienced attorneys, not clerks or paralegals, handle your case at Z&A. Our clerks' main objective is to help attorneys in administrative and follow up work.  Not only will each client's PERM Labor Certification be prepared by an individual attorney, it will also be reviewed by one of our most experienced attorneys for final checking before submission of the application.

Q: When does PERM become effective?

A: PERM became effective on March 28, 2005

Q: Will the employer be allowed to file regular labor certification or RIR after March 28, 2005?

A: No. Once PERM takes effects, Labor Certification Application is only available through the PERM process.

Q: Will PERM impact labor certification petitions filed prior March 28, 2005?

A: Pending Labor Certification Applications, either regular cases or RIR cases, filed prior to March 28, 2005 are processed under the old traditional or RIR rules at two national backlog centers, one in Dallas, TX and another in Philadelphia, PA. The PERM rule will not apply to cases filed prior to March 28, 2005.

Q: Are there are any procedural changes in the processing of regular or RIR labor certification cases filed prior to March 28, 2005?

A: Yes, there are significant changes in procedures for all pending labor certification filed prior to the PERM system. Please refer to RIR Section for more information [link to RIR Section]

Q: Who is the petitioner of the PERM?

A: PERM must be filed by a US employer, not by the alien employee. The alien employee is only the beneficiary of the application.

Q: What is the general procedure for filing a PERM Petition?

A: The general procedure for filing a Labor Certification is described below:

Q: If Zhang & Associates, P.C is retained for the PERM petition, what does the attorneys will do?

A: Our attorneys will do most of the work, including the following:

Q: What does the employer need to do during the processing?

A: Although the attorney will do most of paper work, employer’s cooperation is necessary, as some steps are required by the DOL regulations are to be handled by the employer. In detail, employer needs to do the following:

Q: Is there a difference between electronically submitting the application and sending the application through the mail?

A: Yes. Filing the application electronically will get the application to the processing center faster, giving one an earlier priority date. If one sends the application through the mail, it will take time for them to receive it and then they will have to enter the data manually into the matrix.  This will increase the time it takes to process the application.  If a case is filed by paper, it is more likely that the processing time will takes longer than 2-3 months.  However, this does not mean that filling the application electronically is more successful.

Q: I filed a PERM application and realized that I made a mistake. Can I go back and correct this mistake?

A: No, once the application is submitted, it is considered final and no changes can be made.  The only remedy for a mistake is to withdraw the application and submit a new one.  For this reason we recommend that you retain the services of experienced attorneys, like those of Z&A, as an individual attorney will prepare your case and then one of our most experienced attorneys for final checking before sending out the package, ensuring your application is accurate.

Q: What is the time frame of recruitment process?

A: According to PERM regulations, all recruitment activities (except one optional choice) must be conducted no more than 180 days but no less than 30 days prior to the date of submission of the PERM labor certification.  Therefore, a PERM case must be submitted within 180 days from the date start of the first recruitment activities.

Q: How soon can the employer complete all recruitment activities?

A: Technically, an employer may complete all recruitment activities within 30 days.  This is because the job order has a mandatory thirty-day period of posting. All other recruitment activities may be conducted concurrently during this period. 

Q. How soon can an employer submit a PERM from the date of first recruitment?

A: Technically, an employer may submit a PERM application in 60 days from the date of first recruitment.  As explained above, the employer may complete recruitment activities in 30 days.  There is a 30-day waiting period from the date of completion of the mandatory posting and two optional postings prior to the submission of the PERM.  This period is required so that the employer may screen and interview the potential candidates.

Q. Usually, how long does a PERM process take from the start to approval?

A: Most PERM cases take around 6-7 months from the start to approval.  Recruitment process, including design of position and PWD process, takes around 3 months, and the DOL process takes around 3 months. 

Q: Can I withdraw an application if it is selected to be audited?

A: No. If the application is selected for an audit, the employer cannot withdraw the application and must face any consequences of the audit.

Q: What are the differences between EB-2 and EB-3?

A. EB-2 refers to the 2nd preference of employment-based immigration petitions. A position that requires a minimum a master’s degree or a bachelor’s degree plus five years of experience may qualify for an EB-2 category. A position that requires at a minimum a bachelor’s degree or two years of experience falls in EB-3 category. In adjustment of status or consular processing, EB-2 and EB-3 visa availability may be different. As of June 2006, EB-3 has around five years backlog of visa availability while EB-2 visa is currently available for all areas except Mainland China and India.

Q. What is the visa availability?

A. In the US employment-based immigration petition system, each immigrant category has a certain quota of visas for each country on annual basis. If a visa number in one category for a certain country has been used up, aliens born in that country may have to wait for visa availability.

Q: How do I estimate the waiting period for visa quota?

A: The time between your priority date and the cut off date issued by Department of State is generally the period of time that you have to wait before you are able to file adjustment of status or consular processing from the date you submit PERM LC.

Q: What is my priority date?

A: In green card processing through PERM LC, your priority date is the date when the PERM petition is received by the DOL.

Q: What is the cut off date?

A: Cut off date is a date issued by the Department of State each month to notify the visa availability.
Sample:
Mr. Wang is Chinese and is also a beneficiary of a PERM labor certification that is filed in March 28, 2006 and the petition position requires a bachelor’s degree (EB-3). So, Mr. Wang’s priority date is March 28, 2006. Assuming his PERM LC is approved on May 28, 2006. In May, the DOL published cut off date shows that EB-3 category for Chinese born alien is 01/01/2001. Therefore, Mr. Wang will not able to file I-485 application though his employer may file I-140 for him. Mr. Wang cannot file I-485 until the DOS published cut off date reaches March 28, 2006.

Q: What expenses are expected during the Labor Certification process?

A: There are two major costs involved in PERM Labor Certification: advertisement fees and attorney's fees. The cost of advertising for the available job position can vary from several hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisement must be placed. For more information on attorney's fees, please click here. [link to fees]

Q: How much is the filing fee for a PERM Labor Certification application?

A: No filing fee is required for a PERM Labor Certification application.

Q: How much does it cost to place the job advertisements?

A: The costs to place a job advertisement varies from a few hundred dollars to fifteen hundred dollars, depending on the rate charged by the newspaper in which the advertisements are placed. A job position located in a large metropolitan area will generally cost more than a job posting in a rural locale.

Q: How do I select the newspaper for the job advertisements?

A: The job advertisements need to be placed in a local newspaper where the job position is located. The newspaper should be generally circulated with substantial amount of subscribers. Attorney will make arrangement of the advertisement with appropriate media that is acceptable to the DOL. Our firm will arrange the newspaper posting and external posting for you so that it reduces the work of the employer and expedites the process.  We make such an arrangement though a nationwide media company who has expertise in selecting DOL accepted papers and also receives good rate due to their volume ordering with the media.

Q. What are the new mandatory advertisement requirements for PERM Labor Certification?

A: PERM regulations require at least two Sunday postings, plus one 30-day job order with the state workforce agent. Alternatively, PERM allows a professional position that requires experience and an advanced degree to use one Sunday edition posting AND one professional journal postings instead of two Sunday postings.

Q: Do I have to advertise in the Sunday edition?

A: Yes, urban and suburban areas must place their advertisements in the Sunday edition of the newspaper.  If rural areas do not have Sunday editions, they are allowed to use the newspaper edition with the widest circulation.

Q: What if the position is for a worker with an advanced degree, do I still have to post in the Sunday edition of the newspaper?

A: Yes.  If the position is for one with an advanced degree and experience, you must still place an advertisement in at least ONE Sunday edition of the newspaper AND can place a second advertisement in a professional journal.

Q: What must be included in the advertisement?

A: The newspaper advertisements for both professional and nonprofessional occupations must include the name of the employer, indicate that applicants should submit resumes to the employer, description of the job, description of the geographic area, not include any job requirements other than those listed on ETA Form 9089, and cannot contain wage or terms that are less than that offered to the alien.

Q: Do I need to include the wage rate in the advertisement?

A: No, the wage that will be paid to the employee does not need to be included.  If it is included, if cannot be lower than the prevailing wage rate.

Q: Are additional recruitment steps required?

A: Yes. PERM regulation requires the employer to conduct additional recruitment activities in addition to the basic mandatory advertisements for a professional position. For Professional Positions, the employer must conduct three of the following activities:

Q: Can placing three advertisements on different websites or three advertisements on television fulfill the additional recruitment steps?

A: No.  The advertisements must be placed in three different mediums as specified in the list provided by the DOL regulation shown above. They cannot all be in the same mediums.  If an employer places three postings with same type of media, say three job searching websites, it will be considered as one posting activity.

Q: What is a professional position?

A: In general, PERM regulations consider a position that requires a minimum of bachelor’s or higher education a professional position. For example, a Software Engineer position that requires a minimum a bachelor’s degree will be categorized as a professional position; therefore, additional recruitment activities are required. However, a Chinese cook position that generally requires only two years of experience but no degree is considered as non-professional position and does not need additional recruitment activities.

Q: Is there a valid period of time for the advertisements and recruitment activities?

A: Yes. All mandatory advertisement, job order, an internal posting, and additional recruitment activities must occur during within 180 days of the date filing but no closer than 30 days prior the date of the filing. A single exception is allowed, one (of the three) additional recruitment activities may occur within 30 days prior the date of filing.

Q: Must the job advertisements and recruitment activities be done in several months?

A: There is no specific requirement for the interval of the job advertisements or recruitment activities. So, technically, all can be done in about 30 days, but all must meet the above valid period requirements.

Q: How long is an approved Labor Certification valid?

A: An approved Labor Certification does not have an expiration date and is valid forever.  The DOL has proposed a rule that an approved labor certification must be filed with 45 days with I-140 to be valid.  However, as drafting of this answer (June 2006) such a rule has not been published into effective.

Q: What is the Prevailing Wage in PERM Labor Certification?

A: Prevailing wage is a minimum wage determined by State Wage Agent to be paid to the offered position. 

Q: Who determines the prevailing wage?

A: Each state has a State Workforce Agency (SWA) that determines the prevailing wage according to DOL data.

Q: How long is a Prevailing Wage Determination (PWD) valid?

A:  The State Workforce Agency must indicate on the PWDR form how long the PWD is valid, which will be valid for no more than one year and no less than ninety days.

Q: When does the employer have to pay the offered salary to the alien employee?

A: Because the PERM LC and immigration visa petition is filed for a prospective job, the latest the employer has to pay to alien the offered salary (equal or higher than the prevailing wage) is when the alien receives permanent residency (the Green Card). However, the employer has to demonstrate the ability to pay the offered salary throughout the whole PERM LC process as well as throughout the I-140/485 process until the alien receives Green Card.

Q: How does employer to demonstrate the ability to pay offered salary?

A: The employer can demonstrate its ability to pay by using either one of the following:

Q: Can a Company apply for a PERM Labor Certification on behalf of a person who is not currently an employee?

A: Yes. The Labor Certification application is filed for prospective employment. You are only required to work for the employer when you obtain the green card. You do not need to work for the company-petitioner while the Company is petitioning for you.
Example:
Joe has a Labor Certification application filed on his behalf by Company A while he is working for Company B under his H1-B visa. Joe is only required to start working for Company A when his adjustment of status (I-485) is approved. Until then, he may work for Company B.
Company C files a PERM Labor Certification application on behalf of Stephanie who is currently living in Paris and not a current employee. This is fine since Stephanie is only required to work for Company C once a green card is obtained, most likely, through consular processing. It does not matter whether Stephanie is living in the U.S. or is an employee for Company C until that time.

Q: What is the difference between a Labor Certification and a Work Permit?

A: A Work Permit or Employment Authorization Document (EAD) is a document that the USCIS issues to aliens stating that they are eligible to work on a temporary basis within the U.S. In contrast, a Labor Certification DOES NOT give the alien authorization to work within the U.S. Rather, a Labor Certification is the first step that allows the employer to file an immigration petition on the alien's behalf.

Q: Who can obtain a Green Card without Labor Certification?

A: Family-based immigration cases DO NOT require Labor Certifications. In addition, aliens who qualify as either: Aliens with Extraordinary Ability, Outstanding Researchers or Professors, or Multinational Corporation executives or managerial transferees), National Interest Waiver candidates, Immigrant Investors, or some pre-certified occupations (such as registered nurses) do not need a Labor Certification for their Green Card application.

Q: Does an approved Labor Certification allow me the legal right to work within the U.S.?

A: No. An approved Labor Certification only allows your employer to file an EB-2 or EB-3 category immigration petition on your behalf.

Q: Does an approved PERM Labor Certification provide me legal status within the U. S.?

A: No.

Q: What type of job position qualifies for a PERM Labor Certification application?

A: Any position that an employer attests (through active recruiting) that there is a shortage of qualified and willing US worker may qualify for the PERM LC. Remember, aliens who qualify as Aliens with Extraordinary Ability, Outstanding Researchers or Professors, or Multinational Corporation executives or managerial transferees, National Interest Waiver candidates, Immigrant Investors, Religious Worker or some pre-certified occupations (such as registered nurse) do not need a labor certification for a employment based immigration visa petition.

Q: Who is the petitioner in a Labor Certification?

A: The employer is the petitioner in a PERM Labor Certification and files the application on the alien's behalf.

Q: My employer is a start-up company that currently is operating without a profit. Is my employer eligible to apply for a Labor Certification application on my behalf?

A: Yes, it is possible. A profitable company is not a requirement to file a Labor Certification application. However, the petitioning Company is required to show its ability to pay the offered salary from the time of filing until the alien receives green card.

Q: What are the employer requirements for a PERM Labor Certification application?

A: The employer must attest to the following:

Example:
Lawrence decides to form his own company, Company Z in order to obtain a Green Card via an employer-based immigration petition. Lawrence's company, Company Z, files a PERM Labor Certification on his behalf. The Labor Certification will most likely be denied since the Department of Labor will question whether it is a bona fide or good faith job offer.

Example:
Susan's employer, Company D files a PERM Labor Certification on her behalf. Her current salary does not meet minimum prevailing wage requirements. This does not affect Company D's requirements since Susan's current salary is not required to meet prevailing wage requirements. Company D is only required to pay the prevailing wage at the time the Green Card is obtained since the Labor Certification is based on a prospective job offer. However, Company D must show the ability to pay the offered salary during the whole process.

Q: Must I work for my employer during the Labor Certification process?

A: No. You do NOT need to work for your employer during the Labor Certification process. However, if you do not work for the employer during the immigration process, you must work for the employer for a reasonable period of time after you receive the permanent residency.
Alternatively, if you have been working for 180 days after filing your I-485 and your I-140 is approved, you may change employer and take a similar position and it will not impact your I-485 process.

Q: What will happen if another company merges with the employer-company during my after my PERM Labor Certification is approved?

A: If the new company accepts all benefits and liabilities of the employer-company (a successor in interests), the new company may continue your green card process.

Q: What will happen if I change jobs during my PERM Labor Certification process or during my immigration visa petition after PERM is approved?

A: Changing jobs will not affect your Labor Certification process if your LC sponsoring employer agrees to continue the PERM Labor Certification petition and immigration visa petition on your behalf on the condition that you are going to return to the sponsoring employer when you return to work. However, in the real world, most employers will withdraw or discontinue the immigration process if you leave the company. 

Example:
Li works for Company H and Company H files a PERM Labor Certification for Li.  Li found another attractive position at Company M at a location that is closer to his family.   He negotiated with Company H that he is going to continue his green card process and Li will return to work for Company H when his green card is approved. In such a situation, Li may continue his green card process with Company H and his change of employer does not impact the green card process.

Q: May two or more companies file PERM Labor Certification applications for one alien worker at the same time?

A: Yes.

Q: Can one company file two PERM Labor Certification for the same employee for two different positions?

A: No.  Under the current DOL practice, one employer cannot have two PERM petitions for the same alien.  Even though it is legally possible that an employer files two labor certifications for two different positions for the same alien, the current PERM system cannot allow such filing.

Q. Can I file a PERM labor certification while I have a Labor Certification is pending at the Backlog Center?

A: Yes. You may file a new PERM Labor Certification, even by the same employer, even if you have a RIR or regular Labor Certification pending at the backlog center.  The PERM filing can be the same position as your previous case or can be a new position.  Filing of the PERM does not impact your previous pending case. 

Q: I am a beneficiary of a pending immigration petition via NIW, EB-1a or EB-1b. Can I also have my employer file a PERM Labor Certification on my behalf?

A: Yes. Your employer may file a PERM Labor Certification for you even if you are beneficiary of another pending or approved immigration petition. Filing PERM is an extra benefit to you.

Example:
Joon is a beneficiary of a pending family-based immigration petition. Joon may have his prospective employer, Company U file a Labor Certification on his behalf, which may increase his chances for approval.

Example:
Ann has filed an employment based immigration petition through a National Interest Waiver (self-petition). Ann may have her employer file a PERM Labor Certification application on her behalf as well. It may increase her chances for obtaining a Green Card.

Example:
Tony is currently an F-1 student. Tony may have his prospective employer, Company W apply for a PERM Labor Certification on his behalf. In general, the Labor Certification filing is not considered an immigration petition and may not affect his F-1 visa application/renewal. However, after filing I-140, alien’s benefits under F status may be impacted.

Example:
Lana's National Interest Waiver (NIW) petition has been approved but she has recently changed her line of work. Lana's Adjustment of Status (I-485) application is still pending. She is worried that her Adjustment of Status may be denied due to her changed line of work. Lana may have her prospective employer, Company ABC, file a PERM Labor Certification application on her behalf. Lana may get green card through PERM labor certification and does not need to worry about the potential denial of her I-485 based on NIW due to her change of filed of employment.

Q: How important is the job description and minimum job requirements to the Labor Certification process?

A: The job description and minimum job requirements are key issues in the Labor Certification process. A carefully drafted job description and its job requirements determine the pool of potential job applicants responding to the job advertisement. In addition, it determines whether the position will meet the technical requirement for the PERM petition. 
However, unreasonable minimum job requirements or requirements that are tailored to the specific alien's qualifications may not be allowed by the DOL.

Q: Who will draft the advertisement's contents?

A: If Zhang & Associates, PC is hired to handle the Labor Certification, the most experienced PERM attorney at the firm will prepare the job advertisement to ensure that it meets all requirements.

Q: I am living in California, but your office is headquartered in Houston, Texas. Could you handle my Labor Certification case?

A: Yes. Our firm is headquartered in Houston, TX, and has offices in New York City and Chicago, IL, but we handle PERM Labor Certification cases for clients located throughout the U.S. by using the latest technology in providing professional services to them. Please click here to see the map of our clients' locations in the United States.

Q: Does Z&A handle the placing of the job advertisement for its clients?

A: Yes, our firm makes arrangements to have client advertisements handled through an advertisement agent. Generally, an advertisement agent can obtain a better quote than the rate quoted by newspapers.

Q: What is an Internal Job Posting?

A: It is a job advertisement that is posted internally and conspicuously at the employer's premises for at least ten (10) business days during the job recruitment campaign to provide notice of the current opening to the company's employees. The internal job posting must follow a special format and include specific wording, as indicated by the law. A Z&A attorney can draft an internal job posting for its clients.

Q: Does the employer need to provide notice of filing to bargaining representative?

A: Yes.  If the offered position is a union position, the bargaining representatives of the employees in the same occupational classification for which the application is being filed for must be given notice.  If bargaining representatives do not exist, then an Internal Job Posting must be made.

Q: Has the new Labor Certification process expanded the Internal Job Posting requirement?

A:  Yes.  In addition the previous requirement, the employer must now publish the internal job posting in any and all in-house media, whether electronic or printed that is usually used for posting such a notice for recruitment of similar position by the employer.

Q: How long does the Notice of Filing have to be posted?

A:  The Notice of Filing may be posted indefinitely, but must be posted for at least 10 consecutive business days, which fall between 30 to 180 days prior to filing the application.

Q: What must be included on the Notice of Filing?

A: The Notice of Filing must comply with the DOL requirements and must include the wage offered, and job description, working hours, contact person’s name and address, and other elements that are mandatory as required by the DOL regulation.  The DOL has very strict requirements for internal job posting.  Any mistake or error in job posting may cause the denial of the case.

Q: How long is the job recruitment campaign period?

A: As a big change of the PERM regulation, there is no mandatory length of the recruitment period for the whole campaign so long as the recruitment activities meet the requirement as outlined above. All recruitment activities can be technically posted and completed in 30 days.

Q: Who is considered a qualified U.S. worker for Labor Certification purposes?

A: For Labor Certification purposes, a U.S. worker is defined as a U.S permanent resident, US citizen, or other specially authorized aliens (such as asylees or refugees) who satisfy the minimum job requirements and is willing to take the position under the conditions and terms described in the Labor Certification application.

Q: What is the Recruitment Report?

A: The recruitment report is a statement detailing the recruitment activities, applications, interviews, and the decisions concerning all applications. There are several specific required items in the report according to the PERM regulations. Although the report is not required to be submitted with the initial PERM LC application, the PERM regulations require the employer to sign the recruitment report prior to filing the case and the employer should submit the recruitment report and other documents to the DOL within 30 days upon the DOL’s request if the case is selected for auditing.

Q: What happens to my PERM Labor Certification case if my Employer-Petitioner goes out of business?

A: Your PERM Labor Certification petition will be denied.  Or even if the DOL approves it without notice of the winding-up of the business, you may not able to continue I-140 petition without sponsorship.

Q: May I leave the U.S. during the PERM Labor Certification process?

A: You may leave the U.S. during the PERM Labor Certification process. However, filing the PERM LC does not help your reentry into the United States. You should secure a visa for reentry. Please consult a competent attorney for your reentry issue.

Q: Will the PERM Labor Certification application affect my visa application?

A: An LC petition will most likely NOT impact your visa application. The current non-immigrant visa application form does not require disclosure of the LC application information. However, if you have filed I-140 immigration petition after receiving a PERM approval, your I-140 will impact your eligibility to secure non-immigrant visa, except in L and H categories.

Q: My spouse's employer has filed a PERM Labor Certification on his behalf. Shall I have my employer file a PERM Labor Certification application on my behalf as well?

A: Yes. Filing two Labor Certifications on your behalf may increase your chances of obtaining a Green Card.

Q: My Labor Certification has been approved. What factors may prevent me from obtaining a Green Card?

A: If your Labor Certification has been approved, you are well on your way to obtaining a Green Card. Potential risk factors may include your company’s inability to pay and your criminal record, if any.

Q. Can my employer restrict the job requirements to specifically fit my credentials but make most potential job applicants unqualified?

A. The job requirements cannot be unduly restrictive. In general, a job is not considered unduly restrictive when the job requirements: a) are those normally required for the job in the U.S.; b) are those defined as part of the job in Dictionary of Occupational Titles; c) do not contain a language requirement other than English. All three conditions must be fulfilled for a job not to be considered unduly restrictive. This is one of the critical issues in the LC application and only very experienced attorney can make good determination.

Q. Is foreign language totally eliminated from job requirements?

A. No. Although as a general rule language other than English is considered unduly restrictive and will trigger auditing in the PERM LC, an important exception applies, i.e. the business necessity exception. The language requirement will be acceptable if it is considered a business necessity. In general, a language requirement is not allowed in the PERM LC, if the position does not directly require language performance (such as Chinese language teacher).

Q. What is business necessity?

A. Basically, business necessity means that a job requirement must bear a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform in a reasonable manner the job duties as described by the employer. The DOL has a JobZone code to determine the general required qualifications for the petition. If the required qualifications in the petition exceed the JobZone code, it may trigger the DOL to audit and the employer may be required to demonstrate the business necessity.

Q. I am working in a small company as a programmer. All my co-workers speak Mandarin in the workplace, can my employer require Mandarin Chinese as business necessity?

A. Probably not. The key point to determine business necessity is whether a requirement is reasonably necessary to perform the job duties. Although it may be convenient to communicate in Mandarin in a workplace where all your co-workers speak Mandarin, language is not reasonably necessary to perform your duty. Of course, business necessity would be more likely established if your job duty is writing Chinese software programs.

Q. I operate a travel agency and over half of our clients speak Chinese only. Now I need to recruit an agent, can I require language as business necessity?

A. Maybe. Under this circumstance, you must provide evidence that the foreign language is necessary to communicate with clients, customers or contractors. In practice, however, it is hard to challenge the DOL’s standards.

Q. My employer is a sole proprietor and I am in H-1B status working for him. Currently he is paying me less than the prevailing wage set for LC but sufficient for the prevailing wage for set H-1B. Is he required to prove that he has the ability to pay for the PERM Labor Certification purposes?

A. Yes. Although an employer is not required to pay the proffered wage until after the permanent residency is granted, the DOL regulations reflect that the employer must have the ability to pay. If he has not paid the prevailing wage set for LC, he needs produce evidence at time the application filed to demonstrate his ability to pay the prevailing wage.

Q. The company currently hiring me has not made any profit for the past two years. Can the company apply LC for me?

A. It depends. One way to prove ability to pay the prevailing wage is by demonstrating that the petitioner’s current net assets are equal to or greater than the offered salary from the date of submission the PERM Labor Certification. Or, if your salary has been equal or higher than the salary offered in PERM since the date of submission of PERM, USCIS will consider the employer has met the ability to pay requirement.  

Q. What if the company fails to prove its ability to pay the prevailing wage?

A. Failure to produce evidence of ability to pay the prevailing wage at time the application filed may result in a denial of the immigration petition. In the Labor Certification processing, the Department of Labor usually does not check this issue. However, during the I-140 processing, the USCIS checks this issue carefully, tracing back to the priority date when the LC was field. Also, the burden of proof rests solely on the petitioner.

Q. I have a part-time job and my employer agrees to file a PERM Labor Certification petition on my behalf. Does a part-time position qualify PERM Labor Certification?

A. No. The job offer in LC petition must be for a permanent and full-time position. Part-time positions do not qualify. Please be noted, however, that the permanent and full-time requirements are for the future position when permanent residency is granted. You are not required to work full time at time the LC petition is filed.

PERM Labor Certification is an extremely complicated procedure. We recommend that you consult with an experienced immigration attorney. For more information on PERM labor certification, please click on the following links:
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Description Of PERM Labor Certification
Who needs PERM?
General Procedures for PERM Application
Requirements of PERM
PERM Advertisement and Recruitment
PERM Prevailing Wage Issue
Factors Affecting PERM Success
Employer’s Financial Ability for a PERM Petition
Effect of Mergers & Acquisitions on PERM
Priority Date in PERM
Filing New PERM LC vs. Conversion of Pending LC
PERM Green Card Flow Chart
PERM Audit Procedures
Remedies for PERM Denial
Supervised Recruitment in PERM
EB-2 vs. EB-3 in the PERM Process
Frequently Asked Questions about PERM Process
PERM Services that We Provide
Attorney's Fees for PERM
Articles & News on PERM Process
Special Handling PERM for University and College Teachers
PERM Specialty Team