EMPLOYER-SPONSORED GREEN CARDS
A PATH LAW GROUP GUIDE
What is the PERM Labor Certification?
Program Electronic Review Management (PERM) is the process used for obtaining a labor certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (i.e. green card). The labor certification process is intended to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigration visa classifications are not displacing equally qualified U.S. workers.
A permanent labor certification (or “PERM”) issued by the Department of Labor (DOL) allows an employer to sponsor a foreign worker for U.S. permanent residency. The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job that is being offered to the foreign worker and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The date the PERM application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. The priority date is essentially the foreign workers “place in line” for permanent residency processing.
After the PERM application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. If the foreign worker is eligible, the employer may concurrently file Form I-485 as well.
Who Requires a PERM?
PERM Labor Certification is the required step for those seeking permanent residency under the Employment Based Second Preference EB-2 Visa and the Employment Based Third Preference EB-3 Visa.
The EB-2 Visa is an employment-based second preference petition for a foreign professional with an advanced degree or its equivalent (master degree or higher), or a foreign national who has exceptional ability in the sciences, arts, or business. In some instances, a professional with a Bachelor’s degree and at least five years of progressively responsible experience in the job being offered may be considered to possess the equivalent of a Master’s degree in the field. You can read our full EB-2 guide here.
The EB-3 Visa is an employment-based third preference petition for a foreign national employee who has a Bachelor’s degree, or, if not possessing a degree, is a skilled worker, meaning the foreign national has at least two years of work experience for the job being offered. Additionally, there is a sub-category for unskilled workers that requires less than two years’ experience. You can read our full EB-3 guide here.
What are the Basic Requirements?
There are several basic requirements for PERM applications.
Full-time Employee. The employer must hire the foreign worker as a full-time employee. Part-time work is not allowed.
The employer who files on behalf of the alien must attest that the position is a full-time job offer located in the United States, that the position is a bona fide job offer that is available to U.S. workers. The job requirements should not be tailored to the alien worker’s qualifications. Further, the employer must show that there are no qualified U.S. workers able, willing, qualified, and available to accept the job offer through the specific recruitment process (outlined below) and that employment of the alien will not adversely affect the wages and work conditions of U.S. workers.
Permanent Job. The employer must be offering a permanent position. Temporary or seasonal positions do not qualify for the labor certifications. They may qualify for temporary work visas but they do not qualify for PERM.
What are the Steps to PERM?
1. Determining Job Description.
Before any work begins on the PERM process the employer must finalize the job description for the foreign worker. This description is required on many forms throughout the green card process and the success of the application depends on it.
Oftentimes, it is helpful for employers to consult with their immigration attorney as to whether the description is either too broad or too specific. It is often best to draft a description that includes the exact minimum requirements for the job – nothing more, nothing less. For example, including employer preferences such as language skills, additional training, etc., is not recommended. The DOL is very sensitive to language that may dissuade otherwise qualified American workers from applying for the offered position.
2. Prevailing Wage.
Once the job description is finalized, the immigration attorney will do a search to determine the prevailing wage (PW) for the position. The PW is the minimum amount that can be paid to the foreign worker for offered job. The figures vary based on several factors, including the county where the work will be performed and the level of experience, training and/or education required. The attorney will find a preliminary PW based on available information online and then file a formal PW request with the DOL. These two figures are almost always the same unless the DOL has a differing interpretation about which wage level applies to the position.
A PW determination is valid for anywhere from 90 days to 1 year (validity periods of 90 days are the most common). The validity date is important since the employer must either file the PERM application or being recruitment efforts within the validity period. If this is not done, then a new PW must be requested, resulting in long setbacks.
Prior to filing the PERM application, the employer must conduct recruitment of U.S. workers for the job being offered. Recruitment can be burdensome and very time and process specific. A general overview of recruitment requirements are below:
a. Job Order
The employer must place a job order with a local State Workforce Authority (SWA) for a period of 30 days. This can be done online or at any State controlled website. The requirements for filing a SWA job order include:
(1) Company FEIN (Federal Employment Identification Number;
(2) Company address, job response contact, email and phone;
(3) Job Description
(4) Minimum Job Requirements
(5) UIN (Unemployment Issuance Number)
(6) Salary and Benefits.
b. Advertisements in Newspaper or Professional Journal
For all PERM applications the employer must place an advertisement in a newspaper of general circulation on two different Sundays. For professional positions requiring a Master’s degree or higher, the employer has the additional requirements of advertising in at least 3 of the following:
(1) Job fairs;
(2) Employer’s web site;
(3) Job search web site other than employer’s;
(4) On-campus recruiting (usually for positions requiring no experience);
(5) Trade or professional organizations;
(6) Private employment firms;
(7) An employee referral program, if it includes identifiable incentives;
(8) A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
(9) Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
(10) Radio and television advertisements
If the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in that area. This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.
The job advertisements must include the name of the employer, address where applicants should send resumes to the employer, employer contact information, and a description of the job with enough details that it is clear what the job is for. A wage is not required to be listed, however, if listed it must not be lower than the Prevailing Wage determination.
c. In-House Posting
The employer must also post an internal job posting (also called a notice of filing) in a conspicuous location with all DOL required information for a period of 10 consecutive business days. If the position is a union position, the employer must give proper notice to the bargaining representative. The notice of filing must contain the same information as the advertisement content.
d. How long is recruitment?
Recruitment must be performed during the 180 days prior to filing the labor certification application, but must also be completed 30 days before filing the application. For more inquiries about timeframes speak with your attorney.
4. PERM Submission
All PERM labor certifications applications are filed online with the DOL.
Common Issues and Questions:
1. What are the costs and who is responsible?
Department of Labor has no filing fees for PERM petitions. The USCIS has a $580.00 fee for the I-140 petition and $1070 for I-485. Advertising fees range at approximately $1,200+ and must be paid by the employer. Effective July 16, 2007, employers must pay for all costs of preparing, filing, and obtaining PERM certification, including recruitment and attorney fees. The foreign worker may pay for the I-140 & I-485 processes.
2. What is the timeline for a PERM case?
From start to approval, processing PERM cases can range from 3-6 months if there are no audits. 6-12 months for I-140s and 6-12 months for I-485. At the time of writing, the approximate processing time for a PERM-based green card petition is 18 months.
3. Must foreign language skills be totally eliminated from job requirements?
No. Although as a general rule requiring the applicant to speak a language other than English is considered unduly restrictive and will likely trigger an audit, an important exception applies: the business necessity exception. The language requirement will be acceptable if it is considered a business necessity. Business necessity might exist if the position directly requires language performance, such as a Spanish language teacher. Business necessity can be established here: that a Spanish language teacher must speak Spanish in addition to English in order to perform the job.
4. Audit Related Issues
When a petitioner submits a PERM application there is no way to submit additional evidence (i.e. supporting documents, recruitment logs, etc.) Therefore, most PERM cases are approved based on the facts of the application alone, it is not uncommon to receive an audit. An audit is the process by which certain PERM applicants are required to submit proof of their recruitment activities. A certifying officer can request an audit of any permanent labor certification application if he or she finds the application suspicious in its content, recruitment activities, or the authenticity of the job opportunity. The certifying officer can also randomly select PERM applications for auditing as part of an integrity check to make sure the PERM process is functioning appropriately.
5. How to Maintain a Record of the Review/Interview Process.
The law requires that employers retain all PERM documents (copies of advertisements, resumes received, etc.) for a period of five years.
In addition to this retention requirement, employers must document their advertising and recruitment process in a “recruitment report”. The DOL may ask to see this recruitment report before approving the PERM application, so it is crucial that employers make their report as comprehensive and detailed as possible. Employers prepare the recruitment report after conducting all of the interviews and before submitting the ETA Form 9089 to the DOL.
The recruitment report must outline the PERM advertisements that the employer placed. The report should include the name of the advertising venue and the dates the advertisements ran.
6. What is the “10 Day Posting Notice”?
The DOL requires a sponsoring U.S. employer to post notification regarding the filing of a labor certification for ten (10) consecutive business days. The purpose is to notify employees of their employer’s intention to file the labor certification application case.
As a precaution, it is better for U.S. employers to post notices for days just in case there are any federal holidays that may intervene.
7. What are “business related” reasons for rejections?
During recruitment process, employers must create a “recruitment report” and cite each resume the employer received and explain the reason for rejecting the particular applicant. The disqualification must be business related. Examples of business related reasons include:
a. The applicant did not meet the minimum requirements;
b. The applicant was unwilling to relocate;
c. The applicant’s salary requirement was too high.
Regardless of the reason, it is important to keep detailed notes of each interview. When in doubt, contact your attorney.
8. When does the certification expire?
The certification has a validity period of 180 days and expires if not submitted to USCIS within this period.