Skip directly to content

Third Preference

EB-2 and EB-3 Labor Certification Applications
PERM-based EB-2 and EB-3 Labor Certification Applications are a common process of applying for permanent residency (Green Cards).  The EB-2 category, which allocates 40,000 visas annually, covers applicants with at least a master’s degree, or a bachelor’s degree plus at least five years of experience, who are coming to the US to work in their field.  The EB-3 category also allocates 40,000 visas annually and covers applicants with at least a bachelor’s degree or at least two years of training or experience.
 
The first step in PERM-based EB-2 and EB-3 Green Card Applications is the Labor Certification Application. The goal of this process is to determine whether there is a sufficient number of qualified US workers in the local area.  If it is determined that there is not a sufficient number of qualified US workers for a particular position, the hiring of a foreign worker is justified and the labor certification application is approvable.
 
The local labor market is tested through advertising and other competitive recruitment methods. Under the PERM process, recruitment is conducted prior to filing to test the market. Recruitment includes two Sunday print advertisements and recruitment including job search websites, postings on company websites, employee referral programs, or local newspapers. A job order with the State Workforce Agency is also required. Upon completion of the recruitment, an audit file is created that includes evidence of recruitment.  PERM Labor Certification Applications may be subject to a  selective or random audit.

The Labor Certification application process does not require that the applicant must be working for the employer at the time of the application.  The employer must attest that it intends to hire the applicant at the end of the Green Card application process.
 
Further, applying for a labor certification does not bind the employer legally. The employer remains free to dismiss the applicant or to take other personnel action as it would with regard to any other employee. The employer may withdraw the labor certification application at any time and the applicant may terminate employment with the employer at any time.

The PERM (“Program Electronic Review Management”) Green Card application process became effective on March 28, 2005. As of that date, the former labor certification system was replaced by the PERM regulations. The PERM process was designed to reduce the processing time of labor certification applications to approximately six months.  Following approval of the PERM alien labor certification application, the I-140 petition for permanent residency is filed with the US CIS. The final stage in the Green Card application process is the filing of an I-485 application for adjustment of status or consular processing for permanent residency at a US Consulate outside the United States.
 
The following is a synopsis of the PERM Green Card application process:
 
Prevailing Wage Determinations Under PERM - the wage offered to the applicant must be 100% of the prevailing wage. The prevailing wage must be paid from the time the alien is admitted to the US as a permanent resident.
Pre-filing Recruitment - the recruitment process under PERM involves the following aspects:
(a) Posted Notice – The employer must post a notice of job opportunity for at least ten consecutive business days, between 30 and 180 days prior to filing the application.
(b) Use of Other In-House Media – In addition to printed notices, the employer must use in-house media in accordance with the normal procedures used for recruitment for similar positions in the organization.
(c) Job Order – The employer must place a job order for a period of 30 days, listing the start and end dates of the job order.
(d) Advertisements – The employer must place two advertisements on two consecutive Sundays in a newspaper of general circulation. Both ads must be placed more than 30 days, but not more than 180 days, before filing the application. The ads may be placed on consecutive Sundays and must list the name of the employer, the area of employment and a description of the job.
(e) Three Additional Recruitment Steps for Professionals – The employer must complete at least three of the following recruitment efforts for a professional position:
  1. Recruitment at job fairs
  2. Advertising on employer’s website
  3. Use of job search website other than employer’s site
  4. Use of on-campus recruiting
  5. Recruitment through trade or professional organizations
  6. Use of private employment firms
  7. Use of internal employee referral programs with incentives
  8. Notice of job opening at campus placement office, if the job requires a degree but no experience
  9. Advertising in local or ethnic newspapers
  10.  Advertising on radio or television
One of the recruitment steps may take place within 30 days of filing, but no recruiting efforts may take place more than 180 days before filing.
 
Recruitment Report: The recruitment report must describe the recruitment steps and results, including the number of people hired, the number of US workers rejected, and lawful job-related reasons for rejections.
 
Documentation must be maintained for five years – The employer must retain supporting documentation for five years from the date of filing including, but not limited to, all documents related to the prevailing wage determination, internal notices, recruitment efforts and the recruitment report. If the Department of Labor audits an application, failure to provide the requested documents will result in denial of the application and may result in up to two years of supervised recruitment.
 
Filing Fees - No fee is required to file an application under PERM.
 
Audits - Select cases may be scrutinized, for quality control and fraud purposes, in random audit processes. The DOL uses technologies to allow for the detection of anything unusual, such as whether the telephone number provided for a company is a cell phone number. Certain responses are likely to result in “flags” that indicate problematic applications requiring supervised recruitment or further audits. If selected for an audit, the employer is sent a letter requesting documentation to support its attestations. Following an audit, a case would either be approved or denied.