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The PERM (formerly Labor Certification) is required for a visa application, adjustment of status or consular processing.

There are currently five (5) employment based preference categories. Under current law, there are a maximum of 140,000 employment based immigrant visas issued each year. The first three preference categories are each allotted approximately 40,000 visas annually plus certain allocations from the preference groups.

The last two categories are each allotted approximately 10,000 visas annually. Any unused visas in the first three categories are applied against the demand of any other of the first three preference categories.

The classification of a preference category dictates the complexity, cost and wait of the procedures. The important factors influencing the difficulty of the process include the demand for visas in each category, the number of visas available in each category, whether the category requires a PERM application, and whether a National Interest Waiver is possible under the circumstances.

Employment First Category (E1) - No job offer required

Within this category there are three sub-categories:

1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue such work in the field in which they have extraordinary ability. These applicants can file their own petition with USCIS (formerly INS) without the need of an employer.
2. Outstanding professors and researchers with at least three (3) years experience in teaching or research, who are recognized internationally. No PERM is required for this classification, but the prospective employer must provide a job offer and file the petition with the USCIS.
3. Certain L-1 visa executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No PERM is required for this classification, but the prospective employer must provide a job offer and file a petition with the USCIS. Employment Second Category (E2)

All second preference category applicants must have a PERM approved by the Department of Labor (DOL), or Schedule A designation, or establish that they qualify for one of the shortage occupations under the Reduction in Recruitment process (discussed later). A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and PERM if the exemption would be in the national interest, in which case the alien may file the petition. Form I-140 along with evidence of the national interest. There are two subgroups within this category: Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five (5) years experience in the profession, and persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.

Employment Third Category (E3)

This group includes skilled workers, professionals holding Baccalaureate Degrees and other workers. This is the category under which most people file. These applicants require an approved I-140 petition filed by the prospective employer. They all require a PERM application (Labor Certification or Schedule A designation), or evidence that they qualify for reduction in recruitment (RIR). There are three subgroups within this category:

1. Skilled workers are persons capable of performing a job requiring at least two year’ training or experience.
2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree.
3. Other workers are those persons capable of filing positions requiring less than two years’ training or experience.

Employment Fourth Category includes Special Immigrants.

There are six (6) subgroups:

1. Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination.
2. Professionals with a baccalaureate degree are members of a profession with at least a university bachelor’s degree.
3. Former employees of the Panama Canal.
4. Retired employees of international organizations.
5. Certain dependents of international organization employees.
6. Certain members of the U.S. Armed Forces.

Employment Fifth Category (E5)

To qualify, an alien must invest between U.S. $500,000.00 and $1,000,000.00 depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, lawful permanent residents, or other lawful immigrants, not including the investor and his or her family.

LABOR CERTIFICATION-ETA 750A and B are Department of Labor (DOL) forms. After completion of these forms and complying with all requirements, a labor certification may issue. The labor certification must establish that the alien will not displace US workers or adversely affect the wages or working conditions of US workers. This is established by demonstrating that no minimally qualified and willing US worker can be found. Alternatively, a position may be pre-certified if the DOL has determined that there are insufficient USC/LPR workers in the field. This is accomplished through a list of pre-certified jobs designated as Schedule A by the DOL. Once a labor certification is approved, the employer files an I-140 employment based visa application on behalf of the alien employee or prospective employee.

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