PERM Labor Certification
Labor certification is the first step in the standard “green card” process to obtain permanent resident status based on a job in the United States. The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2 and is not required for any EB-1, EB-4, or EB-5 petitions.
PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market before filing the application.
Under PERM regulations, employers have the option of submitting the labor certification application, electronically or by mail, directly to the DOL. The current processing time for unaudited PERM applications is closer to 90 days.
STEP ONE: PRE-FILING RECRUITMENT
Required company registration
- Employers must directly register with USDOL. No agent or attorney may do this on the employer’s behalf. After registration, USDOL will send registration information to the employer by email, including user ID, password, and PIN.
- PERM requires that employers obtain prevailing wage determinations from USDOL in advance of the filing. Moreover, an employer must pay the sponsored employee at least 100% of the prevailing wage for the position and demonstrate “ability to pay” the required wage from the date of PERM filing. For small companies, it is important to pay the prevailing wage from the date of PERM filing in order to satisfy “ability to pay.”
Job order requirement
- Another requirement under PERM is placing a 30-day job order with the state workforce agency. Each state has different procedures for placing job orders.
- The employer must post notice of the job opportunity for at least 10 consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may express it as a range, so long as the lower end of the range meets or exceeds the prevailing wage.
Use of Other In-House Media
- In addition to printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.
- The employer must place a job order with the SWA for a period of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.
- The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed between 30 and 180 days before filing. The ad must list the name of the employer, the geographic area of employment and a description of the vacancy specific enough to apprise U.S. workers of the job opportunity.
Undertake at least three additional Recruitment Steps for Professional Jobs
The list of permitted additional recruitment steps in the final PERM regulation includes:
(1) job fairs;
(2) employer’s website;
(3) job search website other than employer’s;
(4) on-campus recruiting;
(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; and
(10) radio and television advertisements;
- The employer must retain recruitment materials and results, including résumés of applicants sorted by the reasons they are not qualified, for five years. USDOL generally requests copies of résumés if a case is audited.
- College and university teachers only need to show that they were selected pursuant to a competitive recruitment and selection process within 18 months of the filing date. This process only needs to include one advertisement placed in a national professional journal. The employer must also prepare a statement outlining the recruitment procedures and include a final report from the selection committee.
STEP TWO: ALIEN LABOR CERTIFICATION APPLICATION ETA FORM 9089
A. Employers submit application for permanent Employment Certification ETA Form 9089 directly with the U.S. Department of Labor (DOL), online or by mail.
- While supporting documentation (e.g., evidence of recruitment, business necessity for special requirements) will not be submitted with the application, such documentation must be maintained for five years and supplied if requested by the certifying officer.
B. Under PERM, the employer must obtain a prevailing wage determination from the State Workforce Agency (SWA).
- Employers will be required to pay 100 percent, rather than 95 percent, of the prevailing wage. In addition, DOL will offer a four-level wage system in place of the current two-level system.
C. As was the case with reduction in recruitment (RIR) applications, PERM requires an employer to recruit for the job BEFORE the application is filed.
WHAT CAN HEPPEN DURING THE PROCES AND WHAT EMPLOYER SHULD FOLLOW AFTER
Audits: DOL will conduct audits of certain PERM applications according to internal criteria designed to identify questionable applications, as well as at random. USDOL may also conduct random audits. Below are some factors that may trigger audits:
- Positions with educational requirements below a bachelor’s degree;
- PERM applications filed by some public schools;
- Positions requiring a bachelor’s degree and no experience;
- Cases submitted after a denial or withdrawal following an audit;
- Cases in which employers had a layoff;
- Positions requiring a foreign language;
- Employers with 10 or fewer employees;
- Employers with any family relationship between its employees and the sponsored foreign national;
- An employer accepts an alternative combination of education and experience;
- An employer accepts experience in an alternative occupation;
- Job requirements exceed those determined by USDOL to be “normal” for the occupation;
- Jobs involving a combination of occupations.
After the PERM application is filed, USDOL will email the employer’s registered contact person to verify the job opening as a part of its anti-fraud efforts. Failure to reply within seven days will result in a phone call to the employer. Failure to immediately return the phone call will result in a denial of the application.
The four questions USDOL will ask are:
- Are you aware that an Application for Permanent Employment Certification was filed on your behalf?
- Are you, or do you work for, the employer referenced in the application?
- Do you have an opening for [name of position] in [city and state]?
- Are you sponsoring [employee’s name] for this position?
The appropriate response to each of these questions is “yes.”
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