The Labor Certification process, commonly referred to as PERM, is the process by which a U.S. employer sponsors an employee’s immigration.
There are no jobs that cannot qualify for Labor Certification. The goal of the Labor Certification Process is to make sure that foreign workers are not taking jobs from qualified U.S. workers. The actual standard is that Labor Certification will be granted if there are no U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.
PERM is the first step in a three-step process to legal permanent residence via labor certification. The employer is only directly involved in the first two steps of the process. PERM is a standardized procedure by which employers are required to test the U.S. labor market to demonstrate to the Department of Labor (“DOL”) that there are no willing, able, and minimally qualified U.S. workers available for the position in which the foreign national is being sponsored. Additionally, the employer must attest that they will pay at least the prevailing wage for the position, as determined by the DOL.
The online PERM application form is a detailed series of attestations regarding the recruitment process, as well as details regarding the employer, the position being offered, and the foreign national employee.
WHAT ARE THE FIRST STEPS IN THE PERM PROCESS?
The first step in the process is a series of correspondence between the attorney, employer, and employee to establish the crucial details of the job for which the employee is being sponsored. This includes job title, job duties, minimum education and experience requirements, job location, number of employees being supervised, and other important details.
After outlining these elements, we will draft a PERM summary sheet, which includes all of the necessary details of the employment provided by the employer, including the text that will be used for advertisements. We typically offer a conference call with all parties after the initial draft of the PERM summary sheet in order to refine certain details and review the next steps in the process.
After all parties approve the content of the summary sheet (at minimum the employer, employee, and employee’s supervisor), we will then submit a prevailing wage request to the Department of Labor. After receiving the prevailing wage determination, the advertisements will be placed to test the labor market.
WHAT DOES “PREVAILING WAGE” MEAN?
Each year the DOL issues new data regarding the prevailing wage/salary for each job classification in each geographic region. Once the job details have been established, we submit an online request to the Department of Labor for a prevailing wage determination for the position. DOL will determine the prevailing wage for the position in the specified geographic location, based on the job duties, minimum education and experience requirements, and other possible details or requirements (such as a travel requirement). If the wage for the position is governed by a collective bargaining agreement (CBA), documentation is submitted to DOL to show this.
This determination is required for the PERM process, and sets the minimum wage that the employer must be willing to pay the employee, at the time that the employee becomes a legal permanent resident.
WHAT DOES IT MEAN TO “TEST THE LABOR MARKET”?
The PERM process requires the employer to advertise the position in several different ways. This includes: two Sunday print ads in a newspaper of general circulation covering the area of employment; an internal posting notice at all work locations; a 30-day online state job order, run by the state Department of Labor; and three additional forms of recruitment. The additional forms of recruitment commonly include: job postings on the employer website; advertisement on a non-employer job search website; a print ad in a local or ethnic newspapers; an employee referral program; or evidence of on-campus recruiting.
The results of this recruitment process will be the employer’s demonstration to the Department of Labor that there are no willing, able, and minimally qualified U.S. workers available for this job opportunity, and that labor certification for the foreign national should be approved.
For jobs that do not usually require at least a Bachelor’s degree, the three additional forms of recruitment are generally not required.
The language of these ads must meet certain strict criteria to be acceptable to the Department of Labor.
WHY DO WE HAVE TO RUN ADS IF THE POSITION IS NOT REALLY OPEN (WE ALREADY EMPLOY THE FOREIGN NATIONAL)?
The Department of Labor and USCIS consider the position open because the employee is in a temporary visa status. An H-1B visa, for example, has a limit of six years. Therefore, the foreign national is not considered a permanent employee.
In addition, before an employer can permanently employ a foreign national, it needs to be demonstrated to the Department of Labor that there were no available U.S. workers who are willing, able, and qualified for the position.
WHAT DO I DO IF THERE ARE APPLICANTS FOR THE POSITION?
The employer is required to evaluate all applications for the position. All applicants that appear to be minimally qualified, based on the requirements agreed upon on the PERM summary sheet, must receive a response from the employer within 14 days. However, you are only required to consider “U.S. workers,” which means U.S. citizens, permanent residents, or individuals in valid asylee or refugee status. Individuals who would require visa sponsorship do not need to be considered.
Applicants that appear to meet the minimum qualifications should be contacted and possibly interviewed by phone or in person. It is required for the employer to show a good faith effort in contacting applicants. Neglecting to contact potentially qualified applicants can result ultimately in a denial of the PERM application.
If there are minimally qualified applicants who would accept the position if offered to them, the PERM process cannot be continued at that time. The process can be completely restarted after a six-month waiting period. Please be aware, however, that all advertisements and postings must be conducted again. In addition, the employer should take appropriate steps to ensure that the foreign national has an adequate amount of time left of employment authorization to allow for this six-month delay.
Please also note that a PERM application may generally not be submitted on behalf of an employee if the employer has had a layoff in the past six (6) months in the area of intended employment in the occupation or related occupation being applied for.
CAN WE MAKE THE MINIMUM REQUIREMENTS SO DIFFICULT THAT IT IS LIKELY NO APPLICANT WILL MEET THEM?
The minimum requirements for the position must genuinely reflect the minimum requirements that you would set in recruiting for the position if you had to replace your current employee. They cannot be tailored to the qualifications of the foreign national; they must reflect a general minimum standard for that position, even before the foreign national was hired.
A few other notes about minimum requirements:
If there are other employees who hold the same position, the minimum requirements cannot exceed the qualifications held by those employees.
The foreign national employee must be able to prove that he/she met those requirements at the time he/she was hired for the position. This means that you cannot require skills that the employee has learned “on the job,” nor can you require an academic degree that the employee received after he/she was hired.
Much of the language commonly used for employment recruitment, such as “must be a team player” or “Master’s degree preferred,” cannot be used in PERM ads. The minimum requirements must be qualifications and skills that can be objectively proven, and must be clearly stated.
Requiring specialized skill or knowledge is permissible, but a long list of such special requirements will set off a red flag for the Department of Labor, and may trigger an audit.
WHAT HAPPENS IF THERE ARE NO MINIMALLY QUALIFIED APPLICANTS?
If there are no minimally qualified applicants, the PERM application can be filed with the Department of Labor.
WHAT HAPPENS AFTER THE PERM APPLICATION IS FILED?
The PERM application will be reviewed by a Department of Labor analyst and one of three things will happen:
The application will be approved.
The application will be audited. A small percentage of applications are chosen for audit randomly, and a larger percentage are chosen for audit based on a detail in the application that raised a red flag
In rare cases, an application will be denied without an audit. This should only happen in cases where the recruitment requirements were not met.
WHAT IS AN AUDIT?
An audit is a request from the Department of Labor for clarification or further evidence regarding some detail or piece of the PERM application. Audit requests include, but are not limited to:
Evidence of completion of all required recruitment steps, including evidence of all applications received and appropriate contact made with potentially qualified applicants
Explanation of why the position requires the minimum degree
Explanation of why the position requires a certain number of months or years of related employment experience or academic knowledge
Explanation of why the position requires certain specialized knowledge, skills, or training
Explanation of why knowledge of a foreign language is required for the position
Explanation of why domestic or international travel is required for the position
Because audits can be random and the percentage of cases audited by DOL is increasing, we take all necessary preliminary steps to both help avoid an audit, and be prepared for an audit should we receive one. The most common audit is a request for recruitment documentation and all applications received, accompanied by an explanation of why the employer deemed each applicant unqualified. Therefore, it is crucial for the employer to show a good faith effort in evaluating resumes and contacting potentially qualified applicants, and keeping detailed records of all correspondence with applicants.
In certain rare circumstances, the DOL may then require an employer to go through the process of “supervised recruitment” after an audit.
WHAT IS SUPERVISED RECRUITMENT?
In certain circumstances after the employer has submitted recruitment documentation to DOL in response to an audit, the DOL will come back and tell the employer that the recruitment must be re-done, under the supervision and approval of the Department of Labor. Ad language must be pre-approved by the Department of Labor before advertisements can be placed, and the DOL will also specify where, when, and how the advertisements must be placed. Applications must also be directed to the Department of Labor, instead of the employer.
The employer will then have to prepare a report (virtually identical to the recruitment summary letter prepared before submitting the PERM application) that details its compliance with the supervised recruitment procedures. If the employer follows all rules and regulations of the supervised recruitment, the PERM application should then be approved as long as no qualified applicant applied.
Supervised recruitment generally will only happen when the DOL has enough reason to speculate that there are qualified U.S. workers for the position being applied for, or if the employer did not adequately advertise the first time.
WHAT DO WE DO IF THE PERM APPLICATION IS DENIED?
If the PERM is ultimately denied, the employer has the option of filing an appeal. This appeal would state the employer’s argument for why it believes the PERM application was denied in error. The certifying officer can then either agree with that argument and approve the application, deny it, or forward it to the Board of Alien Labor Certification Appeals (BALCA). BALCA will then evaluate the application and evidence presented, and make a final binding decision on the case. Note that an employer can file a “Motion to Reopen” for re-review, if the certifying officer denies the PERM application after appeal.
If the PERM application is denied as the final decision, the employer will have to begin a new PERM case for the sponsored employee if they wish to continue his or her employment through this means of employment authorization.
IS THE EMPLOYER REQUIRED TO KEEP ANY DOCUMENTATION DURING OR AFTER THIS PROCESS?
The only documentation the employer is required to keep during the PERM process is the applications received for the position, as well as a record of any and all contact with applicants.
Following submission of the PERM application, the following documents must be gathered and saved for the employer’s PERM “compliance file,” which must be kept with the employer for a minimum of five (5) years after the PERM is filed:
A copy of the submitted PERM application (Form ETA 9089)
Prevailing wage determination
Signed & dated recruitment summary letter
Copies of all tearsheets for print ads
Copies of website printouts for internet postings
Evidence of all additional forms of recruitment
Signed & dated internal posting notice or union notice
Copies of all applications received in response to the ads
Evidence of any contact with applicants
WHAT HAPPENS AFTER THE PERM APPLICATION IS APPROVED?
The next step is to file an I-140 Immigrant Worker Petition with USCIS, which must be filed within 180 days of the PERM approval. This application is signed by the employer and includes two major components:
Evidence that the employer has the “ability to pay” the employee the stated salary for the position. This evidence may include audited financial statements, annual report, corporate tax returns, or other forms of evidence of available corporate funds. Other supplemental documentation includes evidence that the employee has been paid the offered wage since the filing of the PERM: payroll records, W-2 forms, and/or other acceptable documents.
Evidence that the employee meets the minimum requirements for the position. This includes copies of diplomas and transcripts to verify that the employee has the required degree, any licenses or certifications required for the position, or letters from previous employers certifying that the employee has the required years of experience, skills or knowledge.
Please also note that the employer must be willing to submit financial documents to USCIS with the I-140 petition that show ability to pay the salary. The documents are confidential not shared with the employee or with any other third party.
The third step in the process is the I-485 “green card” application. This application is filed by the employee and any dependent family members. The employer is not involved in this application, but may be asked to provide a letter confirming that the job offer still stands.
WHAT ARE THE EMPLOYER’S RESPONSIBILITIES?
In order for this process to be successful, the employer must be willing to:
Go through a simple process of registering the company for the PERM online system (if not already registered)
Work with us to establish all necessary job details (i.e. job title, job duties, minimum requirements, ad language, etc.)
Forward to us all applications received for the position for our records
Review resumes in a timely manner and keep us updated when any applications are received
Contact applicants in a timely manner who appear to be minimally qualified
Review and sign the recruitment summary letter, PERM application form, and other documents prepared by our office
Respond to the emails from the Department of Labor following submission of the PERM application asking the employer to confirm sponsorship
Please also note that the employer is required by law to pay all costs and fees associated with the PERM labor certification stage. This includes attorney’s fees and the costs of any advertisements.