Immigration: What Does a Certified PERM Application Mean?

The first step in the employer-sponsor process for permanent residency in the US is a PERM application, which is certified by the US Department of Labor (USDOL) for a job being offered to a nonimmigrant.  The certified PERM application does not confer any rights.  This is simply the document that is needed in order to file a Petition with US Citizenship and Immigration Services (USCIS).

Once a certified PERM application is obtained, then the employer-sponsor can file a Petition for Permanent Resident status with USCIS for the non-immigrant who is being sponsored.  The Petition for Permanent Resident status is filed by the
employer-sponsor, who is the Petitioner.  The non-immigrant is the Beneficiary of the Petition.

At this stage, the Petitioner-employer-sponsor must demonstrate that the business is a real business, which is viable and able to sustain the prevailing wage being offered from the time that the PERM application was initially filed.  Generally, for an employer to show that the business has the ability to pay the prevailing wage, federal tax returns for the business are submitted with the Petition.  For instance, if the PERM application was filed with the USDOL on March 15, 2011, then the Petition should include tax returns from the business for Years 2011 and 2012. 

If the prevailing wage was set by the USDOL at $20,000.00 per year, and the non-immigrant has been working for the employer and receiving W-2 forms each year, in at least the amount of $20,000.00/yr, then the business will not only be able to show the ability to pay the prevailing wage, but will show that the business has been paying the prevailing wage. 

If the non-immigrant was paid less than the prevailing wage, then the USCIS will look to the Net Income listed on the business federal tax returns each year.  If the non-immigrant was paid $15,000.00/yr, then USCIS will want to see at Net Income each year of at least $5,000.00.

If the non-immigrant was paid in cash each year, and received no W-2 form and no 1099 form, then USCIS will want to see a Net Income of at least $20,000.00 on each business tax return, if the business is incorporated.  If the business is a
Limited Liability Company, then USCIS will want to see that the business not
only has the full ability to pay the prevailing wage each year from the time
that the PERM was filed, but also has the ability to support the owner of the
business and his/her family.  USCIS will review the owner’s itemized personal household family expenses of mortgage/lease payments, utilities, insurance, food, etc.  There are exceptions to this criteria; if the business experienced an unforeseen loss not likely to reoccur; if the business had to replace a large piece of equipment; if the business expanded, etc. 

The viability of the Petitioner, and the ability to pay the prevailing wage being offered, are the two most important criteria at the Petition stage of the permanent resident process.