Penny Reyes Bonhagen (DC, MD)

For many individuals seeking permanent residency through employment, labor certification through the U.S. Department of Labor is the first step in the process. This article is based on “DFLC Frequently Asked Questions and Answers” on the U.S. Department of Labor, Employment & Training Administration’s Web site: On March 28, 2005, the new Labor Certification for the Permanent Employment of Aliens in the United States (PERM) became effective. Under this new system, the standards for making labor certification determinations remain substantially the same as those used in the former system. The determination will continue to be based on the following standards:

  • whether there are not sufficient United States workers who are able, willing, qualified, and available;
  • whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and
  • whether the employer has met the procedural requirement of the regulations. Nevertheless, there have been some significant changes in the new system.

Employers may now submit the new Application for Permanent Employment Certification (ETA 9089) electronically. The employer can access the Department of Labor Web site ( to register and establish an account that will allow the employer to electronically fill out and submit Form ETA 9089. Unlike the former system, employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA). Although an employer has the option of filing an application by mail, the Department of Labor recommends that employers file electronically. Not only is it faster, it ensures that the employer has provided all required information because an electronic application cannot be submitted if the required fields are not completed. Supporting documents are no longer submitted with the application. However, 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. The employer is required to retain all supporting documentation for five years from the date of filing the Form ETA 9089.

Under the former system, prefiling recruitment was the basis for “reduction in recruitment” (RIR). PERM provisions also require the employer to conduct recruitment prior to filing, but the provisions in the new system are different.

One difference is that recruitment provisions are divided into professional and nonprofessional occupations; additional recruitment steps are required for professional occupations. A list of professional occupations is published in Appendix A to the preamble of the final PERM regulations. Professional occupations are those for which a bachelor’s degree or higher is a customary requirement.

Recruitment under PERM also requires advertisements in the Sunday edition newspaper. An acceptable newspaper is one that the employer is able to document that will be the most likely to bring responses from able, willing, qualified, and available U.S. workers.

In addition to the required recruitment steps, the employer is to place a job order with the SWA serving the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA’s rules and regulations.

PERM was implemented to improve the operations of the labor certification process. All applications filed after March 28, 2005, must comply with the new PERM requirements. Nevertheless, the essential requirements of the process have remained the same:

  • The foreign worker must be hired as a full-time employee.
  • The job must be a bona fide position available to U.S. workers.
  • The job requirements must represent those customarily required for the occupation in the United States and may not be tailored to the foreign worker’s qualifications.
  • The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Does a PERM Labor Certification mean a QUICKER Green Card for your employees?
By Ivanna Riley

Probably not. But read on. One might think that the “new” Labor Certification process, dubbed PERM, expedites the entire “Green Card” process. That is not necessarily so.

The PERM system went into effect on March 28, 2005, and has in fact expedited the Labor Certification process. However, beyond the Labor Certification, there are two more steps involved in becoming a United States permanent resident: (1) filing the I-140, Immigrant Petition for Alien Worker and (2) filing the I-485, Application to Adjust Status. It is with the I-485 that the delays are occurring, due to retrogression.

Once the Department of Labor has approved your Labor Certification, it means the Department of Labor certifies that there are not enough able, willing, and qualified U.S. workers available to perform the alien’s job. The next step is to file an I-140, which is done by the employer of the alien. The I-140 approval means the Immigration Service has found that the alien is in fact qualified for the position certified in the labor certification and approves their employment in this capacity.

The final step, filing an I-485 application to adjust status to that of a “permanent resident,” is currently delayed due to retrogression. As an immigrant visa must be immediately available to adjust status, an I-485 application cannot be filed until your priority date is earlier than the date listed on the Department of State’s monthly Visa Bulletin. When you file your labor certification, you are given a priority date. Your priority date, the country in which you were born, and your employment-based category (determined by the requirements of the job) determine when you are eligible to file an I-485.

At present, applicants currently eligible to file I-485s are those who filed their Labor Certifications years ago. This is due to the fact that there are more individuals (especially those born in India, Mexico, the Philippines, and China) applying for immigrant visas than there are immigrant visas available.

To see who is currently eligible to file an I-485, the Department of State issues a Visa Bulletin on or around the 15th of every month with a list of current priority dates. This can be found at the following link:

For example, as of February 2006, an individual born in India and classified in the third preference employment-based category, who filed their Labor Certification before January 1, 2000, is now eligible to file their I-485, Application to Adjust Status.


Visa and Immigration Law Update

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