AWhat is EB-2/EB-3 PERM?
Program Electronic Review Management (PERM) is a labor certification system that is generally (although not always) the first step towards a foreigner’s obtaining an employment-based immigrant visa.
Permanent labor certification is an authorization that is issued by the Department of Labor (DOL). The idea behind the permanent labor certification process is that it ensures that US workers are not passed over for jobs.
The employment-based preference categories that require PERM labor certifications are EB-2 (with the exception of National Interest Waivers) and EB-3. For EB-2 NIW, please click here.
PERM was first implemented on March 28, 2005, and since then, all labor certification applications are required to be filed with PERM. For Perm procedure, please click here.
BPERM Law 20 CFR §656
The purpose of the labor certification process is to protect the employment prospects and working conditions of U.S. workers. Only after the employer shows that it cannot find a qualified and willing U.S. worker to take the position being offered can the employer file a PERM application for an alien beneficiary who is qualified for said position.
The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market before filing the application. If no qualified and willing U.S. workers, including U.S. citizens and permanent residents, are found during recruitment, then the employer can submit a PERM application.
In the PERM application process, American employers submit PERM (Program Electronic Review Management Process) applications online.When filing, the employer or its attorney must submit ETA Form 9089 either online or by mail.
Online applications are only for PERM labor certification. In this step, American employers do not need to submit any additional recruitment records, resumes of candidates, recruitment results and final recruitment reports. But employers in the United States need to prepare proof of recruitment activities before submitting their application for a labor certification to ensure that they can pass the Department of Labor’s Audit.
The Chief Officer of the U.S. Department of Labor has the power to verify each application. Once the Chief Justice of the Department of Labor suspects that there is any non-compliance in the application, he may issue an Audit to the employer of the United States for clarification. U.S. employers should submit all required supporting documents within 30 days after the U.S. Department of Labor has issued an audit notice. Otherwise, the application will be automatically rejected and the same application will not be filed by an American employer within six months. If the application is rejected for some reason, the American employer may appeal to the relevant authorities. The Ministry of Labor (DOL) generally decides on the application for PERM Labor certification within 45 to 60 days. Due to recent economic and political influences, the trial of labor certification has been slowing down, and legal provisions are becoming increasingly stringent. American employers should make adequate preparations before applying.
I-140 After PERM
An approved labor certification is valid for 180 days post-approval. USCIS will reject any I-140 filings made by employers after labor certifications have “expired.” If a labor certification is filed in support of a Form I-140 petition within the 180-day validity period, however, it will remain valid for future I-140 petitions, too.
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CEB-2 vs. EB-3 Visas in the PERM Process
- EB-2 visas are part of the employment-based, second-preference immigration category meant for
1) foreign professionals with advanced degrees or the equivalent (i.e. master’s degree or higher, or five or more years of work experience), or foreign nationals who have demonstrated exceptional ability in the sciences, arts, or business.
2) In some instances, a professional with a bachelor’s degree and five years of progressive work experience related to the job being offered may be deemed to possess the equivalent of a master’s degree in the field.
- EB-3 visas fall under the employment-based, third-preference immigration category meant for
1) foreign nationals with a bachelor’s degree, or foreign nationals who are skilled workers; workers are considered “skilled” if they have at least two years of work experience relevant to the job being offered. (Please note that the category of skilled workers does not require a degree, such as Chinese food chefs).
2) Additionally, there is a subcategory for unskilled workers requiring no more than two years of work experience.