PERM
By Liu Yu
1. Overview
The Immigration Act of 1990 created several employment-based immigrant visa categories. Among them, the EB-2 and EB-3 visas enable U.S. companies to sponsor foreign workers for a Green Card based on an offer of permanent employment. Though Congress recognized such need to hire foreign labor at times, it also recognized that qualified American workers must be protected from being replaced. Thus, the U.S. Department of Labor (DOL) is tasked with certifying the necessity of foreign labor employment before a beneficiary foreign national worker may be sponsored for a visa.
The DOL has promulgated several frameworks over the years to implement the foreign labor certification process. PERM (Program Electronic Review Management) was implemented in 2005 and governs the current procedures employers must undergo before they can apply for foreign labor certifications. The program must be used all employers who intend to sponsor foreign nationals for permanent employment in the United States under the EB-2 and EB-3 immigrant visa categories (with the exception of EB-2 National Interest Waivers).
PERM established a process by which employers must demonstrate that the hiring of a foreign worker will not displace any qualified U.S. worker. Thus, before filing a PERM application, an employer must test the labor market to ensure there are no qualified and willing U.S. workers available to fill the vacant job position, and that by employing a foreign worker, neither the wages nor the working conditions of similarly employed U.S. workers will be adversely affected. This is done by following several steps of a recruitment process by which the position is advertised and potential candidates have an opportunity to apply.
The PERM labor certification should not be confused with the labor condition application, which is used for some categories of non-immigration employment, such as H-1B and E-3. Although the two involve some similar concepts and are both processed by the DOL, they nonetheless serve very different purposes.
2. EB-2 and EB-3 PERM Categories
Second-preference employment petitions are provided for in Section 203(b)(2) of the Immigration and Nationality Act. EB-2 categories include the following types of employment positions:
● Advanced Degree – jobs that require an advanced degree (such as a master’s degree or higher), and the beneficiary worker must possess one such degree or its equivalent (a bachelor’s degree plus five years of progressive work experience in the relevant field).
● Exceptional Ability – jobs for workers that have an exceptional ability in the sciences, arts, or business. Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the respective field. A worker can qualify as having an exceptional ability a particular area by meeting three of the following criteria:
◆ Official academic record showing that he or she has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
◆ Letters documenting at least 10 years of full-time experience in the occupation
◆ A license to practice the profession or certification for the profession or occupation
◆ Evidence that he or she has commanded a salary or other remuneration for services that demonstrate his or her exceptional ability
◆ Membership in a professional association(s)
◆ Recognition for his or her achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations
◆ Other comparable evidence of eligibility, as may be applicable.
The EB-2 visa also includes the National Interest Waiver category, which, unlike the categories above, does not require a permanent job offer by an employer and does not necessitate PERM processing.
Third-preference employment petitions are provided for in Section 203(b)(3) of the Immigration and Nationality Act. EB-3 categories include the following types of employment positions:
● Skilled Workers – jobs requiring applicants to possess at least 2 years of relevant job experience or training.
● Professionals – jobs requiring applicants to possess certain education, which must be a minimum of a U.S. bachelor’s degree or its foreign equivalent, and such degree must be the normal requirement for entry into such occupation.
● Unskilled/Other Workers – permanent, non-temporary jobs that require less than 2 years of relevant experience or training
3. EB-2 versus EB-3
Some workers may have experience and/or education that may potentially make them eligible for either an EB-2 or EB-3 category. However, the visa category for sponsorship is determined by the employer’s requirements for the job, and not any potential candidate’s qualifications. Specifically, the critical part of deciding the right visa category is the nature and level of the offered job position.
However, employers do not have wide latitude over the requirements they may set for positions offered. The DOL requires that the qualification prerequisites employers set for a position be similar to the typical requirements such position requires in the job market. The DOL refers to Job Zone levels, which rates a position on a scale of 1 to 5 according to its complexity. If the employer’s DOL observes the employer’s requirements as exceeding the Job Zone, the employer may be asked to provide evidence to justify a unique business necessity of requiring a higher than typical standard.
Each Job Zone level can generally be described as follows:
● Job Zone 1 – Requires little preparation, such as several months of experience, and no minimum level of education.
● Job Zone 2 – Requires some degree of preparation, typically no more than one year, and no minimum level of education.
● Job Zone 3 – Requires a medium amount of preparation, between 1-2 years, and no amount of education.
● Job Zone 4 – Requires consideration amount of preparation, between 2-4 years, or a bachelor’s degree supplemented with 2 years of experience.
● Job Zone 5 – Requires extensive experience of more than 4 years, as well as a degree in a relevant field.
EB-2 and EB-3 visas, like all employment-based immigration visas, are limited in number and often become oversubscribed, causing retrogression and long waiting times in the visa queue. Though the visas for each category are independent of one another, there are common trends. Retrogression tends to occur more frequently for EB-3 than EB-2 visas for countries including China, India, and the Philippines, and such backlogs also tend to have longer waiting times than when EB-2 retrogresses. Thus, properly structuring the requirements of the job offer may significantly affect when the foreign worker will be able to start the job.
（To be continued）
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