LABOR CERTIFICATION: PERM LAWYER-ATTORNEY
To consult an immigration lawyer regarding the PERM Labor Certification Application,
please call us at (626) 642-8066 or e-mail us at firstname.lastname@example.org.
An attorney in our office would be happy to assist you.
A permanent labor certification issued by the Department of Labor (DOL)
allows an employer to hire a foreign worker to work permanently in the
United States. In most instances, before the US employer can submit
an immigration petition to the Department of Homeland Security's US
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 US 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
To improve the operations of the permanent labor certification program,
ETA published a final regulation on December 27, 2004, which required
the implementation of a new re-engineered permanent labor certification
program by March 28, 2005.
Applications filed under the regulation in effect prior to March 28,
2005, will continue to be processed at the appropriate Backlog Elimination
Center under the rule in effect at the time of filing. As of March 28,
2005, applications (Form 750) will no longer be accepted under the regulation
in effect prior to March 28, 2005, and instead new applications (ETA
Form 9089) will need to be filed under PERM at the appropriate National
Processing Center. Only if an employer chooses to withdraw an earlier
application and refile the application for the identical job opportunity
under the refile provisions of PERM will a previously filed application
be processed under the PERM regulation.
The DOL processes applications for Alien Employment Certification (ETA
Form 9089). The date the labor certification application is filed is
known as the filing date and is used 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 USCIS service
center with an I-140, Immigrant Petition for Alien Worker. You can access
the State Department Visa Bulletin by Clicking
Here to learn which priority dates are currently being processed.
Applications filed on or after March 28, 2005, must file using the
new PERM process and adhere to the new PERM Regulations;
1. The employer must hire the foreign worker as a full-time employee;
2. There must be a bona fide job opening available to US workers;
3. Job requirements must adhere to what is customarily required for the
occupation in the US and may not be tailored to the worker's qualifications.
In addition, the employer shall document that the job opportunity has
been and is being described without unduly restrictive job requirements,
unless adequately documented as arising from business necessity.
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 (ETA Form 9089). The application
describes in detail the job duties, educational requirements, training,
experience, and other special capabilities the employee must possess
to do the work, and a statement of the prospective immigrant's qualifications.
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 processing center. 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 ETA Form 9089, 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 ETA Form 9089 (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 recruit under the standards for professional occupations
set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the
list of occupations, published in Appendix A to the preamble of the
final PERM regulation, for which a bachelor's or higher degree is a
customary requirement. For all other occupations not normally requiring
a bachelor's or higher degree, employers can simply recruit under the
requirements for nonprofessional occupations at 20 CFR 656.17(e)(2).
Although the occupation involved in a labor certification application
may be a nonprofessional occupation, the regulations do not prohibit
employers from conducting more recruitment than is specified for such
The employer must categorize the lawful job-related reasons for rejection
of US applicants and provide the number of US applicants rejected
in each category. The recruitment report does not have to identify the
individual US workers who applied for the job opportunity.
Audits/requests for information: Supporting documentation need
not be filed with the application, but the employer must provide the
required supporting documentation if the employer's application is selected
for audit or if the Certifying Officer otherwise requests it.
Retention of records. The employer is required to retain all
supporting documentation for 5 years from the date of filing the Application
for Permanent Employment Certification. For example, the SWA prevailing
wage determination documentation is not submitted with the application,
but it must be retained for a period of five years from the date of
filing the application by the employer.
Refiling. If a job order has not been placed pursuant
to the regulations in effect prior to March 28, 2005, an employer may
refile by withdrawing the original application and submitting, within
210 days of withdrawing, an application for an identical job opportunity
which complies with all requirements of the new PERM regulation.
Online filing. The employer has the option of filing
an application electronically (using web-based forms and instructions)
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 can not be submitted if the required fields
are not completed.
The employer can access a customer-friendly web site (www.plc.doleta.gov)
and, after registering and establishing an account, electronically fill
out and submit an Application for Permanent Employment Certification,
ETA Form 9089.
Registration. To better assist employers with processing
the Application for Permanent Employment Certification, the electronic
Online Permanent System requires employers to set up individual accounts.
An employer must set up a profile by selecting the appropriate profile
option in the Online System. By completing an Employer Profile, you
will be able to:
1. Save time by pre-populating your general information
2. View the status of your labor certification applications online
3. Update your profile information online
4. Track newly submitted labor certification applications5.
5. Email saved labor certification applications to others within the company
6. Add new users to your account
7. Withdraw labor certification applications no longer needed
Filing by mail. National Processing Centers have
been established in Atlanta and Chicago. Employers submit paper applications
to the processing center with responsibility for the state or territory
where the job opportunity is located.
Approvals. If the appropriate National Processing Center approves the
application, the ETA Form 9089 is "certified" stamped by the
Certifying Officer and returned to the employer/agent who submitted the
The USCIS Petition
After approval of the labor certification, the employer must file an
Immigrant Petition for an Alien Worker with the US Citizenship
and Immigration Services (USCIS), Form I-140. The employer then attaches
the certified ETA Form 9089 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.
Schedule A Occupations
Schedule A is a list of occupations, set forth at 20 CFR 656.15, for
which the Department has determined there are not sufficient US workers
who are able, willing, qualified and available. In addition, Schedule
A establishes that the employment of aliens in such occupations will
not adversely affect the wages and working conditions of US workers
The occupations listed under Schedule A include:
Physical Therapists - who possess all the qualifications
necessary to take the physical therapist licensing examination in the
state in which they propose to practice physical therapy; and
Professional Nurses - the alien (i) has a Commission on Graduates
in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed
the National Council Licensure Examination for Registered Nurses (NCLEX—RN)
exam, or (iii) the alien holds a full and unrestricted (permanent) license
to practice nursing in the state of intended employment.
Sciences or arts (except performing arts) - Aliens (except for aliens
in the performing arts) of exceptional ability in the sciences or arts
including college and university teachers of exceptional ability who
have been practicing their science or art during the year prior to application
and who intend to practice the same science or art in the United States.
For purposes of this group, the term "science or art" means
any field of knowledge and/or skill with respect to which colleges and
universities commonly offer specialized courses leading to a degree
in the knowledge and/or skill. An alien, however, need not have studied
at a college or university in order to qualify for the Group II occupation.
Performing arts - Aliens of exceptional ability in
the performing arts whose work during the past 12 months did require,
and whose intended work in the United States will require, exceptional
An employer shall apply for a labor certification for a Schedule A
occupation by filing an ETA Form 9089, in duplicate with the appropriate
USCIS Center, NOT with the Department of Labor or a SWA.
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