The labor certification (also known as PERM) is a prerequisite for obtaining employment-based permanent residence in the EB-2 and EB-3 categories. The labor certification is the determination by the Department of Labor that there are no U.S. workers able, willing, qualified, and available for the position for which a labor certification is being sought and that employment of the foreign national will not adversely affect the wages and working conditions of U.S. workers. This document attests that the employer has in good faith engaged in recruitment efforts to fill the pertinent position but has found no able, willing and qualified U.S. worker and would like to hire the foreign national on a permanent (non-temporary) basis. In many cases, this position is the same one that the foreign national already holds on a temporary basis under H-1B, L-1B, or TN status.

The employer must file the labor certification and receive an approval before the employer can file the I-140 immigrant visa petition. The labor certification application is tied to one specific location, job, and employer.

The first step in obtaining residence based on an offer of employment in the U.S. is to obtain a labor certification from the DOL regarding the unavailability of qualified U.S. workers to fill the same position. More specifically, that qualified U.S. workers are unavailable to fill the position which is the subject of the job offer, and that the employment of the foreign national in the position will not adversely affect the wages and working conditions of U.S. workers in similar positions. A labor certification is obtained by filing an application under the PERM system.

An employer is required to complete the following recruitment before filing an application for labor certification:

  • Two ads in two different Sunday editions of the local newspaper with the largest general circulation in the area where the job is located. In lieu of one Sunday newspaper ad, one ad may be placed in an appropriate professional journal, if the job requires experience and an advanced degree, and a professional journal would normally be used to advertise the job opportunity. The ads must be published no closer than 30 days and no later than 180 days before the date of filing the application with the DOL;
  • A Notice of Job Opening based on the job description must be posted on the job-site for 10 consecutive working days in a location where Federal notices are usually posted; and
  • Placement of a job order for 30 days with the State Workforce Agency.

If the position is a professional position, the employer must demonstrate recruitment in an additional 3 recruitment sources. A position is considered professional if a bachelor degree or higher is required in order to qualify for the position. If the position is professional then the employer must demonstrate recruitment in at least 3 of the following:

  1. Job fairs;
  2. Employer’s web site;
  3. Job search web sites (e.g., the DOL’s America’s Job Bank);
  4. On-campus recruiting;
  5. Professional or trade organization search;
  6. Private employment firms or placement agencies;
  7. Employee referral programs with incentives;
  8. Campus placement offices;
  9. Local and ethnic newspapers; or
  10. Radio or television ads.

Once the required recruitment has been conducted, the employer must wait an additional 30 days to monitor the response to the recruitment effort before an application under the PERM system can be filed with the DOL.