PERM Labor Certification

What is PERM?
What is the effective date of PERM?
How fast is PERM processing?
If PERM goes fast, will that create backlogs somewhere else?
How does PERM work?
How does PERM differ from RIR or standard labor certification processing?
Are there any reasons I might still try to file a labor certification before PERM becomes effective?
I have already filed a labor certification, what happens to my case?
I have already filed a labor certification, can I convert it to PERM?
Is it worth it to convert to PERM?
What about serious retrogression of the EB-3 and EB-2 visa categories?
Where can I find the full text of PERM?

What is PERM?

PERM is the U.S. Department of Labor's most recent program for permanent labor certification program. It was officially promulgated on December 27, 2004. These are some of the key points of PERM:

PERM rules must be followed for all labor certification applications filed on or after March 28, 2005.
The U.S. employer must pay at least 100% (instead of only 95%) of the "prevailing wage," but now four wage levels (instead of only two) will be available.
PERM labor certifications will be filed electronically (or by mail) directly with the DOL.
DOL has set the goal for making decisions on the electronically filed PERM applications at 45–60 days (instead of months and years under the RIR or "standard" processes).

What is the Effective Date of PERM?

PERM rules must be followed for all labor certification applications filed on or after March 28, 2005.

The answer is twofold. In the official introduction to the PERM regulations, DOL has set the goal for making decisions on the electronically filed PERM applications at 45–60 days. If DOL really move that fast, that would be far faster than the current years-long processing backlogs existing under the RIR or "standard" labor certification procedures. On the other hand, the 45-60 processing timeframe is only a "goal," which means that DOL is not bound by it. It would seem that straightforward cases electronically filed will hopefully be processed that promptly, but DOL has not published any goals or promises to move quickly on cases for which DOL issues audit letters. It is not hard to imagine that another backlog will be created there. Time will tell what will happen to those cases, or PERM cases in general for that matter.

If PERM goes fast, will that create backlogs somewhere else?

As with any processing line, speeding up one place may cause backlogs elsewhere. As PERM speeds up the labor certification process, the increased number of approved labor certifications will eventually put pressure on the permanent visa availability for nationals of China, India, the Philippines, and possibly other countries. (The third-preference, EB-3, category is already backlogged.) The reason for this backlog is that labor certification approvals will be coming out of two DOL pipes at the same time: a) through the normal processing of labor certification applications in the RIR and "standard" processing lines; and b) through the PERM line. The increased caseload will pile up at the U.S. Citizenship and Immigration Services (USCIS), which will not have an immediate impact on visa numbers, but if USCIS fulfills its promise to speed up processing of I-140 petitions and I-485 applications, then there is a serious potential for a large visa backlog. This will be especially true for positions that require only a bachelor's degree for nationals of China, India, the Philippines, and possibly other countries.

How does PERM Work?

Under PERM, employers will obtain a Prevailing Wage Determination (PWD) from the applicable State Workforce Agency (SWA) and conduct recruitment for the open position. If no able, qualified, and willing U.S. workers, apply for the position, the employer will complete and submit (online or by mail) a detailed form about the job duties, minimum requirements, wages, recruitment efforts, recruitment results, and so on to one of two DOL PERM processing centers. The DOL processing centers will conduct a quick anti-fraud check (to make sure the employer exists and has employees) and if the application is not selected for audit based on unpublished factors or based on random quality control factors, the DOL will certify the application.

How does PERM differ from RIR or standard labor certification processing?

PERM differs in many technical ways, but the most important differences between PERM and RIR or "standard" labor certification processing include:

Speed: DOL says cases will be processed in 45-60 days instead of the months and years required under RIR or standard processing
Prevailing wage: Under PERM, the employee must be paid at least 100% of the prevailing wage in the occupation for the intended area of employment. Under RIR or standard processing, 95% was sufficient.
Procedures: Under PERM, the application is essentially approved "automatically" as long as the application does not trigger the DOL computer to send out an audit request based on unpublished factors and is not randomly selected for a quality control audit. That is, "good" cases under PERM will normally be approved by default. Under the prior RIR and standard processing, all applications had to be reviewed both at the SWA level and at the DOL level before it was approved. Under PERM, the role of the SWA is only to provide prevailing wage analysis and prevailing wage determinations (PWDs).

Are there any reasons I might still try to file a labor certification before PERM becomes effective?

Normally, the speed of PERM makes PERM the obvious solution, but in some unusual cases, it might make sense to file an RIR or a standard labor certification before PERM becomes effective. For example, if the employer is willing to pay only 95%, instead of 100%, of the prevailing wage, then such a case could still be approved under RIR or standard labor certification processing rules, but could not be approved under PERM. A competent immigration lawyer should be consulted before deciding whether to file before or after PERM becomes effective.

I have already filed a labor certification, what happens to my case?

According to the PERM regulations, all cases filed before the PERM effective date of March 28, 2005, must be filed under the RIR or standard processing rules, and they will be processed under those rules and procedures.

I have already filed a labor certification, can I convert it to PERM?

Yes and no. A pending RIR or standard labor certification case can be "converted," but the conversion process effectively requires that the existing labor certification be withdrawn and re-filed under the PERM rules. This type of conversion effectively means going through the time and expense of another labor certification.

There are two important points to keep in mind about the difference between "converting" your pending labor certification application and simply filing a new one. First, if your case is successfully "converted," then you keep the "priority date" of your original application. That could be critical for nationals of China, India, or the Philippines. Second, a pending labor certification can be converted only if it is for the "identical job opportunity." If a labor certification was filed long ago, the job duties or job requirements might have changed somewhat. Such changes, even if very small, might prevent conversion from being possible. The effort to convert does carry some risks of trading an existing slow horse for a fast dead one, so it is important to make sure you understand all risks before deciding whether to try to convert a pending case.

Is it worth it to convert to PERM?

That depends. If you are a national of China, India, or the Philippines, especially in the employment-based third preference (EB-3) category, it would normally make very good sense to convert a pending RIR or standard labor certification application. Doing so would allow you to get your application approved sooner, and get your family in line at CIS or for consular processing for your green card. Also, if DOL and USCIS both speed up processing of employment-related applications, there is a potential for a serious traffic jam at the green card stage. Successful conversion of an application could potentially make a huge difference in other ways, too, such as whether your spouse can work while you are waiting for your green card.

If you are from countries other than China, India, or the Philippines, conversion (or even just re-filing) might make sense just to get your case approved sooner.

What about serious retrogression of the EB-3 and EB-2 visa categories?

If you are from China, India, or the Philippines, the existing EB-3 retrogression could cause serious delays in your path to a green card. In addition, even the EB-2 category is expected to retrogress for at least China and India. If you are from one of these countries, you should also be aware that there are first-preference and second-preference categories that do not require a labor certification, such as Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers (EB-1B), Multinational Executives or Managers (EB-1C), and National Interest Waiver (NIW). A petition successfully filed under one of these categories might allow you and your family to get your green cards potentially several years faster than waiting in the EB-3 line (and perhaps even a considerable period of time before other EB-2 cases). Not everyone qualifies for these other categories, though, so a careful review of your case is important. You can find more information about our free reviews for these types of cases on our Free Consultations page.

Where can I find the full text of PERM?

You can download it from the DOL website in either plain text or pdf format (97 pages).