This is the first step for most employment based immigrant visa (“green card”) cases. It involves a rigorous test of the labor market by the employer for qualified and available US workers. Assuming there are none, the U.S. Department of Labor (DOL) will certify the position; the employer can then can move forward with the next stage of sponsoring a valued employee for permanent residence. Unless an employee can meet the high standards for the EB-1 or National Interest Waiver immigrant visa categories, labor certification is required for EB-2 and EB-3 cases.

The job offer must be for a regular, full time position, not a temporary one. The salary offered must meet or exceed the prevailing wage determined by DOL.

The employer must recruit (test the labor market) in good faith, via multiple channels including newspaper advertisements and posting on the state workforce agency job search portal, as prescribed by the DOL regulations. The employer can find U.S. applicants to be unqualified if they do not meet the stated minimum requirements for the position.  As a result, it is important to define the job requirements clearly and accurately before initiating the labor market test. The sponsored employee should also obtain proof that he or she meets these minimum requirements before the recruitment begins. The employer must meet strict timelines and file the PERM application with DOL before the advertisements expire but after any U.S. workers have had ample opportunity to apply and be considered.

A finding that there is a qualified and available U.S. worker will defeat the PERM labor certification; a finding that there are no qualified and available U.S. workers will allow the case to move forward to the next step – the filing of an employer petition (Form I-140).