"Labor certification" is the most widely used employment-based opportunity for obtaining a green card. Labor certification requires a U.S. employer to prove that there are no minimally qualified U.S. workers for the position. Once the U.S. Department of Labor "certifies" this application, the employer will be able to apply to the U.S. Citizenship and Immigration Services (CIS) for permanent residency (a "green card") for the foreign employee.
Labor certification must be considered in two time frames. Applications filed before March 28, 2005, will be processed either under "standard" procedures or under "Reduction in Recruitment" or "RIR." Applications filed on or after March 28, 2005, will be processed under a completely new program called "Program Electronic Review Management," more commonly known as ("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).
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check (to make sure the employer exists and has employees) and if the application is not selected for audit based on unpublished factors or based on random quality control factors, the DOL will certify the application.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 fast is PERM processing?
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.
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.