Labor Certification

Most employment-based green card cases begin with a step called labor certification. It is the U.S. Department of Labor's way of confirming two things before a U.S. employer can sponsor a foreign national for permanent residence:

• that there are not enough U.S. workers who are able, willing, qualified and available to do the job in the area where it will be performed; and
• that hiring the foreign national will not adversely affect the wages and working conditions of U.S. workers in similar jobs.

The employer, not the worker, is the applicant. The employer defines the job, tests the U.S. labor market through a required program of recruitment, agrees to pay at least the prevailing wage set by the Department of Labor, and bears the cost of the process.

PERM: the current process

Since March 28, 2005 there has been only one route to a labor certification: the PERM system (Program Electronic Review Management). In outline, the employer obtains a prevailing wage determination, carries out a defined sequence of recruitment, observes a required waiting period after that recruitment ends, and then files Form ETA-9089 electronically with the Department of Labor. An application may be selected for audit or for supervised recruitment before a decision is issued.

The date the Department of Labor accepts the application generally fixes the priority date, which is the place in line that matters later for visa availability.

A labor certification is not a visa and not a work permit. It simply clears the way for the next steps: an immigrant petition (Form I-140) filed with U.S. Citizenship and Immigration Services and, once a visa number is available, the application for permanent residence.

When labor certification is not required

Some cases skip this step altogether, including EB-1 categories, EB-2 cases granted a national interest waiver, and occupations listed on Schedule A, which the Department of Labor has already determined to be short of U.S. workers.

The earlier procedures

Other pages in this handbook describe procedures that no longer accept new cases and are kept for historical reference: traditional recruitment, the streamlined Reduction in Recruitment (RIR) method, and the Backlog Elimination Centers created to clear the pre-PERM caseload. All were phased out after PERM took effect, and the backlog centers have since closed.

This page is general information, not legal advice. Forms, filing requirements and processing times change, so they should be confirmed against current Department of Labor guidance, and individual cases should be discussed with an attorney.