The U.S. Citizenship and Immigration Services (USCIS) has updated Chapter 6 of its Policy Manual regarding Permanent Labor Certification (PERM), a crucial step in the employment-based green card process. If you're pursuing an EB-2 or EB-3 green card through employer sponsorship, these updates could affect your case and timeline.
What is PERM Labor Certification?
PERM (Program Electronic Review Management) labor certification is a process where your employer must prove to the Department of Labor (DOL) that no qualified U.S. workers are available for your position. This is typically required before filing an I-140 immigrant petition for EB-2 and EB-3 classifications.
The updated policy clarifies that while DOL approves the labor market test, only USCIS has the authority to determine if you actually qualify for the job. This means USCIS will review whether you met the education, training, and experience requirements listed in your PERM application at the time it was filed.
Key Changes in the Updated Policy
New Electronic Filing System
As of June 1, 2023, DOL requires all PERM applications to be filed electronically through its Foreign Labor Application Gateway (FLAG) system. This replaced the previous Form ETA-9089 with a new format that includes:
- A basic form plus four appendices
- A separate Form ETA-9141 for prevailing wage determinations
- A new "Final Determination" document that employers must print and submit with I-140 petitions
Validity Period Remains 180 Days
The policy confirms that approved PERM certifications remain valid for 180 days from the approval date. Your employer must file the I-140 petition within this window, or the labor certification expires.
Limited Exceptions for Expired Certifications
The updated guidance clarifies when USCIS will accept petitions with expired labor certifications, such as:
- Successor-in-interest cases where your employer changes
- Refiling after a previous petition denial (if not due to fraud)
- Changing from EB-3 to EB-2 classification
Who Is Affected?
These updates primarily affect:
- EB-2 and EB-3 green card applicants whose employers are required to obtain PERM certification
- Employers sponsoring foreign workers for permanent residence
- Immigration attorneys and HR departments managing employment-based cases
Note that EB-1 applicants (priority workers) are not required to have PERM certification and are not affected by these changes.
What You Should Do
If you're currently in the employment-based green card process:
- Check your timeline: If your PERM was approved recently, ensure your employer files the I-140 within 180 days
- Verify your qualifications: Review whether you met all job requirements at the time your PERM was filed, as USCIS will scrutinize this
- Stay informed: If your case involves the new FLAG system (filed after June 1, 2023), make sure your employer has the correct Final Determination document
- Consult an attorney: These policy clarifications may affect pending cases, and you may want to discuss your specific situation with an immigration lawyer
Understanding these updates is crucial for anyone navigating the employment-based immigration process. While the core PERM requirements haven't changed dramatically, the clarifications around documentation and validity periods could impact your case timing and strategy.
This blog post is for informational purposes only and does not constitute legal advice. Immigration law is complex and individual circumstances vary.
If you have questions about how these PERM policy updates affect your case, contact AKT LAW, LLC at (781) 488-0315 or book a consultation at aktimmigration.com. Our team can review your specific situation and help ensure your employment-based green card application stays on track.
Source: https://www.uscis.gov/policy-manual/volume-6-part-e-chapter-6