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PERM Labor Certification

A permanent labor certification issued by the Department of Labor (DOL) permits an employer to hire a foreign worker to work permanently in the United States. A certified labor certification shows that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. In most instances, obtaining a certified labor certification application form from the DOL is first of the three-stage process of obtaining an employment-based green card. The second and third stages are filing an employment-based immigrant petition (Form I-140) with USCIS by an U.S. employer, and filing an adjustment of status application (Form I-485) by the foreign worker, respectively.

To improve the operations of the labor certification program, the DOL implemented a streamlined process for processing labor certification known as PERM (Program Electronic Review Management), effective March 28, 2005. The form used for the PERM labor certification is ETA Form 9089 Application for Permanent Employment Certification.PERM is a three-step process:

Step 1: Prevailing Wage Determination
The sponsoring employer requests the DOL to make a Prevailing Wage Determination (PWD). The request (Form ETA 9141) provides the DOL with information about the job opportunity offered to the foreign worker, including job requirements, job duties, and worksite location. The DOL uses this information to issue the employer a PWD, which states the minimum salary for the specific job position in the specific worksite location. This is the minimum salary that the foreign worker has to be paid when he or she receives the green card. Because the prevailing wage for a job position can vary greatly from one geographic location to another, it is important that the employer provide accurate information about the worksite location on the prevailing wage request.

Step 2: Advertisement and Recruitment
After the prevailing wage is determined, the second step of the PERM process is recruitment. This is the most crucial step as the purpose of the PERM process is to demonstrate to the DOL that there is no able, willing, qualified, and available U.S. worker to accept the job opportunity offered to the foreign worker. The recruitment efforts must be in good faith, which means that the employer must genuinely seek to hire U.S. workers to fulfill the job position.

The law requires the employer to advertise the job opportunity through six (6)total forms of media. Note that three forms of advertisement are mandated and three forms of advertisement are chosen from a list of ten (10) options, as follows:

  • 1) Required: The job announcement must be run for 30 days on the State Workforce Agency (SWA) website of the state where the job opportunity is located;
  • 2) Required: An advertisement needs to be run on 2 consecutive Sundays in the newspaper of general circulation in the area of intended employment.
  • 3) Required: Post the Notice of Job Posting (NOJP) for 10 consecutive business days at the Employer's Place of Business.
  • 4-6) The employer also needs to advertise through any three of the methods listed below:
    • a) Job search website, i.e. Craigslist, Monster, etc.;
    • b) Employer’s website;
    • c) Job fairs;
    • d) On-campus recruiting;
    • e) Trade or professional organizations;
    • f) Private employment firms;
    • g) An employee referral program, if it includes identifiable incentives;
    • h) Notice of the job opening at a campus placement office;
    • i) Local and ethnic newspapers, to the extent they are appropriate for the job opportunity; or
    • j) Radio and television advertisements.

Recruitment Timelines: The employer can file ETA Form 9089 with DOL 30 days after all the advertisements have been run. Thus, all advertisement must take place between 180 and 30 days prior to filing the ETA Form 9089.

Step 3: Submitting ETA Form 9089
After recruitment is complete and provided there are no qualified, able, willing and available U.S. workers to accept the job opportunity, the last step of the PERM process is to submit the ETA Form 9089 to the DOL. The ETA Form 9089 can be submitted electronically on DOL’s website or in mail to DOL’s Atlanta National Processing Center.

The employer must submit the ETA Form 9089 no more than 180 days and no less than 30 days after completion of recruitment. Moreover, the I-140 petition and ETA Form 9089 for a Schedule A applicant cannot be filed until 30 days or more have passed since the Notice of Job Posting has been completed.

The ETA Form 9089 provides the DOL with information on the job opportunity, the employer’s recruitment efforts, and the foreign worker’s biographic data and qualifications. Currently, it takes the DOL approximately seven (7) to nine (9) months or more to adjudicate the PERM application. The DOL can (1) approve the PERM application, (2) deny the PERM application, (3) require Supervised Recruitment, or (4) audit the PERM application. If an employer’s PERM application is audited, the DOL will request the employer to provide additional documents for the application. After the employer responds to the audit request, the DOL will review the documents submitted and either approve or deny the PERM application.

After receiving an approved PERM application, the employer can move on to the next stage of the employment-based immigration process: filing an I-140 petition with USCIS for the foreign worker, who is the beneficiary of the approved PERM application. It is important to keep in mind that the certified PERM is valid for six (6) months and the I-140 petition has to be filed during the validity period of the certified PERM application.

Preparation of Recruitment Report
Prior to submitting the PERM application to DOL, the employer should prepare a recruitment report, explaining the number of resumes required, manner of contacting the job applicants, interviews conducted, and lawful job-related reasons for rejecting U.S. worker applicants. The recruitment report is a critical document at the time of a DOL audit as it may be required to be submitted to the DOL along with documentation to show recruitment efforts.

Record Keeping Requirement
Employers must carefully document all recruitment efforts, including but not limited to newspapers advertisements, printouts from the SWA website and employer websites, printouts of advertisements in other websites which clearly show the date on which the advertisements were posted, Notice of Job Posting, and all resumes received in response to the advertisements. The employers must retain the ETA Form 9089 and all supporting documentation for five (5) years from the date of the filling Form ETA 9089.

DOL Requirement on Attorney’s Fees
Please note that the DOL requires that all legal fees and costs for filing and preparing the PERM Green Card, including the costs for running the advertisements should be paid by the employer and not the employee. That means that the attorney’s fees, fees for costs and advertising costs for the PERM application have to be paid by the employer and not the employee.

Legal Services:
PERM is an extremely intricate and time-sensitive process, which requires strategic planning. The DOL will not permit any amendment, modification, or correction on a pending or approved PERM application. Therefore, clerical errors and inconsistent statements are common grounds for DOL to deny a PERM application. Often times, DOL has denied PERM applications when the job duties and requirements are inconsistent in PERM application, PWD, and advertisements. Even if it is approved, errors or inconsistency in the PERM application could have significant impact on the success of the remaining two stages of the green card process.

At Verma Law Firm, we can advise you on the nuances of the PERM process, while providing guidance on continuously maintaining/extending non-immigrant status alongside. If you have any questions, please schedule a legal consultation.

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