The permanent labor certification (PERM) process is an important step in sponsoring an employee on a green card.  During this informative presentation, Partner and Attorney Min Kim, Paralegal Nina Scott-Curry, and Paralegal Hugo Cobian provide an easy-to-understand overview of what the PERM process entails.

WHAT IS THE PERM PROCESS?

Issued by the Department of Labor (DOL), a permanent labor certification (or PERM) permits employers to hire foreign workers for permanent positions based in the United States. The main purpose of the PERM process is to determine whether hiring a foreign national would:

• Displace equally qualified US workers from taking the same position.
• Have negative effects on the wages and working conditions of similarly employed US workers.

Before filing an employment-based green card petition with United States Citizenship and Immigration Services (USCIS), employers must test the US labor market to ensure that there are not enough US workers available to take the job being offered to the foreign national worker. Employers must also prove that they can pay the worker a fair wage compared to similarly employed US workers. The PERM process is only required for employment-based preference categories EB-2 and EB-3.

Once an employer obtains a PERM certification, they can file Form I-140, Immigrant Petition for Alien Worker with USCIS. USCIS will closely examine whether:

• The job in question closely matches the job as assessed by the DOL’s Employment and Training Administration (ETA).
• The foreign national is qualified to perform the job’s duties.

WHAT IS REQUIRED IN A PERM LABOR CERTIFICATION?

To obtain PERM labor certification, an employer must be able to demonstrate the following:

• The job opening must be for a full-time permanent role.
• The job listing must be available to US workers.
• The job requirements are:
  • Like those for other workers within the same occupation.
  • Not tailored to the foreign worker.
  • Not excessively restrictive unless they are documented necessities specific to the employer.
• The employer must prove they can pay a minimum of the occupation’s prevailing wage to the prospective employee:
  • Prevailing wages are determined either by a collective bargaining agreement (CBA) or are the average wages for similar employees in a similar field.
  • The employer must file a Prevailing Wage Determination (PWD) with their local State Workforce Agency (SWA) to get the accurate rate.
• The employer must be able to add the prospective employee to their payroll before or on the day that they arrive to the United States.
• Any US applicants that applied for the job were lawfully denied.
• The employee’s wages must not depend on financial incentives unless the employee will always earn a minimum of the prevailing wage.
• The employer did not conduct any unlawful discrimination when making the job offer.
• The job must not be available due to a strike or labor stop.
• Employment conditions must meet relevant federal, state, and local legal requirements.
• The employer must not be the same person as the prospective employee.

RECRUITMENT PROCESS REQUIREMENTS

Before filing for the PERM labor certification, employers must conduct a specified recruitment process to demonstrate that there are no other qualified US workers available for the role.

For professional occupations – those requiring at least a bachelor’s degree or equivalent experience – employers must post a job order with the state’s workforce agency (SWA) for at least 30 days, print at least two advertisements in popular two separate Sunday newspaper editions, and choose any three of the following recruitment methods:

• Advertisement on the company’s website.
• Job fair recruitment.
• Employee referral program.
• On-campus recruitment.
• Job search website postings.
• Radio ads.
• TV ads.
• College ad placements.
• Trade or professional organization advertisements.
• Local or ethnic newspapers.
• Private employment firms.

Nonprofessional occupations require the employer to place a job order with SWA and print two newspaper advertisements.

In pre-filing advertisements, it is important to get all the job details correct to prevent your application from being rejected. While every duty, requirement, and employment condition does not need to be featured, it is important to have an accurate description and keep any applicants updated. Descriptions should cover the nature of the position, the employer, job title, location, and any contact information.

Employers must complete all recruitment activities within the 30 days to six months leading up to the filing date. It is important to document proof that the advertising requirements were met. Proof can take the form of website printouts, tear sheets, radio affidavits, and confirmation the ads were placed for the period required; without proof the application will be rejected. 

GIVING NOTICE TO CURRENT EMPLOYEES

Employers must notify current employees that they will be filing a PERM application, and they must document that this notice was given.

Notice should be provided to either a company’s union representative of current employees in similar roles or directly to the workers in the workplace if no such union exists. The notice must meet certain requirements, including:

• It is given between 30 to 180 days before the employer submits the PERM application.
• It contains the wage offered to the prospective employee, which exceeds the prevailing wage provided by the SWA.
• It includes the application’s Certifying Officer and their address.
• It states that anyone can send information related to the PERM application to the Certifying Officer.
• It explains that a PERM application will be filed shortly.

With the help of their experienced attorney, the employer can begin filling out the permanent labor certification application after completing the above steps.

APPLICATION PROCESS

Employers must file ETA Form 9089 to obtain a PERM certification, either online or through the mail.

When filing by mail, the application should be signed by the preparer, the employer, and the prospective employee. For online filings, these individuals will need to sign the certification as soon as it is received. Employers should retain all paperwork required for the application for at least five years after submitting ETA Form 989.

Employers should work closely with their attorneys to submit a complete and honest application. They should consider gathering some basic information ahead of time to ease the process, including the business’s:

• Full legal name and address for its main office or headquarters.
• Total number of employees.
• Founding year.
• Employer Identification Number (EIN).
• North American Industry Classification System (NAICS) code.
• Contact information for its main non-attorney contact, including email address and phone number.

Employers must request a PWD from their local SWA office at least 150 days before they file Form 989. Receiving a PERM Prevailing Wage Determination can take about three to four months. However, the timelines vary based on facts and individual circumstances.

The ETA Form 9089 must contain the information provided by the NPWC, including but not limited to the prevailing wage, the tracking number, occupation title, and skill level requirements.

To protect the company in the event of an audit, employers should document the recruitment process and the job itself.

When completing ETA Form 9089, the following information will be requested:

• Which recruitment methods the employer used.
• During which dates the SWA job order was running.
• The names of the newspapers where the job advertisements were placed.
• Recruitment event dates, where applicable.
• Posting dates for listings on job boards.
• Whether more than one language is required for the employee to perform their job.
• Whether more than a high school diploma is required for the position.

Additionally, employers must be ready to provide information related to their prospective foreign national employee, including their address, phone number, and work experience details. Once all requirements are met, an employer may submit the labor certification PERM application.

Once the labor certification process is complete, an employer can file Form I-140, Immigrant Petition for Alien Worker on behalf of their beneficiary. This effectively begins the green card process.

CONCLUSION

For help sponsoring a green card worker, ensuring your hiring processes comply with federal regulations, and more, contact the Chugh, LLP immigration professional with whom you work.