Most employment-based immigration petitions must start with a permanent labor certification, issue by the Department of Labor (DOL). By approving a labor certification (LC) request, the Employment and Training Administration (ETA) of the DOL certifies that:
Starting March 28, 2005, employers must file ETA Form 9089 under a new LC program named PERM. All previously filed LC applications under either traditional or RIR regulations will still be processed by the two Backlog Elimination Centers in Philadelphia and Dallas. Earlier cases may be withdrawn and refile under PERM for the same employment, but there are complications and risks of losing earlier priority dates (PD) if not handled correctly. Since PD is critical at times of visa retrogression, and all existing backlogs are expected to be completed by September 30, 2007, it is no longer a favorable option.
Please see Current PERM Processing Times
A priority date is the filing date of a labor certification, or the filing date of I-140 when LC is waived. It is used by USCIS and the Department of State (DOS) to determine whether a case is eligible for adjustment of status, or in another word, whether a visa number is available to this case.
LC (Labor Certification) is completely different from LCA (Labor Condition Application).
LC, now called PERM, allows an employer to hire a foreign worker to work permanently in the United States. PERM is filed using Form 9089 with the Department of Labor's Employment and Training Administration (ETA division). The date a PERM application is received by the ETA becomes the priority date used by USCIS and DOS for green card petitions.
LCA, on the other hand, allows an employer to hire a temporary foreign worker, primarily in H-1B status. LCA must be filed using ETA Form 9035E electronically through DOL's iCERT System. In limited circumstances, some employers may file Form 9035 by mail with prior approval. Note: iCert is being replaced by the new cloud-based FLAG system (see below).
So in short, PERM is for green card applications, and LCA is for H-1B visas.
The Foreign Labor Application Gateway (FLAG) is a cloud-based portal designed to replace OFLC's current iCERT System and will serve as the new application filing and case management solution for all foreign labor certification programs.
Throughout 2019, online filing of labor certification will gradually move to the FLAG system. CW-1 is the first, followed by H-2B, H-2A, and finally H-1B, H-1B1 and E-3.
DOL may revoke an approved labor certification if subsequent findings suggest that the certification was not justified. In such cases, DOL will send a Notice of Intent to Revoke (NOIR) to the employer, who then has 30 days after receiving the notice to submit rebuttal evidence. If the employer fails to respond, the approved LC will be considered revoked and no longer valid.
If the employer files rebuttal in time and DOL still intends to revoke the approved labor certification, the employer will have another 30 days to file an appeal. If the appeal is denied too, the LC will be revoked.
DOL will send a copy of the revocation notice to both USCIS and DOS (Department of State).
Labor certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 petition.
For labor certifications that were approved prior to July 16, 2007, DOL established an implementation period: such labor certifications must have been filed in support of an I-140 petition within 180 calendar days after the effective date of the DOL final rule, i.e., prior to January 13, 2008. So it means that by now, all such "old" labor certifications have expired, if they have not been used already.
USCIS will reject all Form I-140 petitions that require an approved labor certification if the LC has expired. USCIS will deny all petitions that are accepted in error when it discovers that the petition was filed with an expired labor certification.
PERM stands for Program Electronic Review Management. Before filing a PERM LC electronically, an employer must conduct certain recruitment activities. Although the advertising requirements are similar to previous Reduction in Recruitment (RIR), they are more stringent and explicit, and must include:
All recruitment must take place within the 30 - 180 day timeframe prior to filing a PERM application, except for one of the three additional steps required for professional occupations which is the sole activity that can take place within 30 days of filing.
An advertisement needs to include a description of the vacancy, the employer name, geographic location, and contact information. Although it is not required to have many details about job duties and other requirements in the ads, an employer must prepare a recruitment report that addresses all minimally qualified applicants who applied for the job. If an employer chooses to include minimum education and work experience requirements in advertising, they must provide such requirements on the ETA Form 9098 as well.