Frequently Asked Questions About PERM

Q:When American employers apply for labor certification, must foreign workers be in the United States?

A: No, it is not necessary. American employers apply for labor certification according to their job requirements. Therefore, American employers can apply for labor certification for foreign workers both inside and outside the United States

Q: When applicants apply for EB-2/EB-3, can immigrant applicants (beneficiaries) change their employers? Can employers change immigrant applicants (beneficiaries)?

A: Beneficiaries and employers of U.S. labor certification cannot be replaced in employment-based immigration. But after I-140 is approved, if the beneficiary needs to change jobs, the beneficiary can ask the new employer to submit a new application and keep the previous Priority date.

Q: During the whole application process, can the applicant pay the attorney fee as EB-1A or EB-2 NIW application?

A: The law requires that the costs incurred in the process of applying for a labour certification including attorney’s fees, must be paid by an American employer, not by an employee.

Q:How much does a PERM labor certification application cost? And who should pay for it?

A:A PERM application includes two major costs: advertisement fees and attorney’s fees. The cost of advertising for the available job position can vary from several hundred dollars to $2,000 or more, depending on the rate charged by newspapers in which job advertisements are placed.

Employers have been required to pay all costs associated with preparing, filing, and obtaining a labor certification, including expenses incurred during recruitment and attorney’s fees.

Q:Can a company apply for a PERM labor certification on behalf of a person who is not currently an employee?

A:Yes. A labor certification application addresses prospective employment. An alien worker is not required to work for the employer until he or she obtains a green card. Further, an alien doesn’t need to work for the sponsoring company while the company is petitioning for him or her.

Q:What are the employer requirements for a PERM labor certification application?

A: A petitioning employer must attest to the following:

The job offer is for a bona fide (i.e. good faith) position;

The job offer meets the minimum prevailing wage requirements;

It has the financial ability to pay the wage;

The working conditions and other facets of the job, as offered, do not adversely affect those of U.S. workers; and

There are no qualified U.S. workers available and willing to fill the position.

Q:Can an EB-2 be downgraded to an EB-3 without filing for a new PERM?

A:Yes. In general, the petitioner needs to file the I-140 petition with an original approved labor certification for EB-2 and EB-3 petitions, and it must be filed within the 180-day validity period of the labor certification.

Q:I currently have a part-time job, and my employer has recently agreed to file a PERM labor certification application on my behalf. Does a part-time position qualify for PERM labor certification?

A:No. The job offer must be a permanent and full-time position. But you should remember that the requirements of the job being permanent and full-time apply only to the prospective job, when an alien receives permanent residency. You’re not required to work full-time for a petitioning employer at the time said employer submits a PERM application. In fact, you don’t have to work for the petitioning employer at all before receiving a green card.

Q:How long does the PERM process take from start to finish?

A:Usually, most PERM cases take around eight to 12 months total. The recruitment process, which includes designing the job description, obtaining a prevailing wage determination, interviewing applicants, and completing the recruitment report, has a typical duration of three months. From that point, the DOL review and adjudication process can last an additional three to seven months, depending on the number of pending cases at its processing centers.

Q:Do I have to work for my employer during the labor certification process?

A: No, you’re not required to work for the petitioning employer. That said, if you don’t work for the employer during the immigration process, you must work for the employer for a reasonable period of time after you receive permanent residency.

Alternatively, if you have been working for 180 days after filing your I-485 and after your I-140 is approved, you may change employers, and take a similar position without any effect to your I-485 process. Note, however, that whether the positions are “similar” enough is subject to a certain legal standard. This is another reason we recommend you consult with experienced attorneys prior to changing jobs in such circumstances.

Q:My employer is a start-up company currently operating without a profit. Is my employer eligible to file a labor certification application on my behalf?

A:It is possible. A sponsoring company is not required to be profitable in order to file a labor certification application. However, the company still has to show its ability to pay the proffered wage from the date it files a PERM application until the date the alien beneficiary receives a green card.

Q: How long should PERM recruitment take?

A: There is no mandatory length of time recruitment should last. The principal consideration is whether or not the petitioning employer’s recruitment activities meet substantive requirements. According to DOL regulations, recruitment activities must be concluded at least 30 days prior to filing, and must have begun no sooner than 180 days prior to filing. One of the three additional steps required for recruitment for professional occupations may take place within a period of 30 days before filing the application. None of the recruitment activities may take place more than 180 days prior to filing the application. Technically, an employer could complete all recruitment activities within 30 days since a job order has a mandatory 30-day posting period. All other recruitment activities may be conducted concurrently. If recruitment takes only 30 days, then the employer need only wait another 30 days to submit the application, for a total of 60 days from the start of recruitment to filing.

Q: I am currently outside of the U.S. Can a U.S. employer sponsor a green card for me through the PERM labor certification process?


Q: I am in the U.S., but am working for employer A now. Can employer B sponsor a green card for me through the PERM labor certification process?


Q: My H-1B employer is willing to sponsor PERM for me. Can my PERM position be different from my H-1B position?

A: Yes. The two procedures are different, and handled by separate federal agencies. As such, there does not have to be exact consistency between them. H1B application is based on a temporary job offer; PERM is based on a prospective permanent job offer. The employer may have multiple positions available. These two jobs/positions may or may not be the same. The H1B job description should accurately describe what the worker is going to do while employed as an H1B non-immigrant. The PERM job description should explain the precise nature of the job being offered. This could be the same job that the employee presently holds or it could be a different position that the employee will hold in the future.

Q: I have a PERM and I-140 approved through company A’s sponsorship. I have not submitted an I-485 yet and I want to switch my employment to company B. Do I need to start the whole process again?

A: Yes. Normally, an employee will lose all the benefits of the labor certification if he or she loses the underlying job before either: (1) the labor certification is approved; or (2) within the first 180 days after filing the I-485. Here, you did not file the I-485. The advantages to portability do not apply if you did not file I-485 concurrently with your I-140.