PERM/Labor certification is a prerequisite for many employment-based permanent resident immigration petitions. It is a process whereby the employer attests that although it has conducted recruitment, there are no qualified U.S. workers able, willing and available to perform the job that is being offered. The U.S. employer must also attest that it will offer the prevailing wage to the employee and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Prior to the introduction of PERM, the labor certification process would take several months to two (2) years, depending on which state the case was filed through. However, with the introduction of PERM (Program Electronic Review Management), the process has been streamlined and the approval process has been effectively shortened to approximately thirty to ninety days.

PERM came into effect on March 28, 2005. Since that time, all labor certification applications must now be filed by following the new PERM regulations. PERM is an electronic filing system where employers may file for labor certification applications directly with the U.S. Department of Labor (DOL) by using the electronic form ETA 9089. The approval is issued by the DOL’s Employment and Training Administration (ETA). Though filing electronically is strongly encouraged, DOL allows employers to file the labor certification application via mail.

Employers seeking labor certification approval from the DOL must attest to the following during the application process:

  1. There is a bona fide job opening for the offered position.
  2. The employer has tried to recruit qualified U.S. workers for the position during the last 6 months and has been unsuccessful in such attempts.
  3. The employer must agree to pay the prevailing wage to the employee and attest that, the employment of the foreign national will not have an adverse effect on the working conditions or wages of U.S. workers in similar positions.


The PERM Process

Prior to the filing of a PERM application, the U.S. petitioning employer must first register with the PERM online system and obtain a unique user name, password and pin number. The registration of the employer profile is a prerequisite for the PERM online filing.

Recruitment Requirements

Each employer is required to conduct recruitment as part of the PERM process in order to establish that there are no qualified U.S. workers to fulfill the position that is offered by the employer. The only exceptions for mandatory recruitment are for those applications that involve college or university teachers selected based on a competitive recruitment and selection process by the university, Schedule A occupations, and sheepherders. Schedule A occupations include physical therapists, professional nurses, aliens of exception ability in the sciences or arts, and aliens of exceptional ability in the performing arts. The recruitment efforts that an employer undertakes must follow the guidelines set forth by the DOL in 20 CFR 656.17. These regulations outline the suggested content and venues in which the employer may conduct recruitment. One such recruitment venue that has been made mandatory by the DOL is the submission of a job order with the State Workforce Agency (SWA) or the local workforce office having jurisdiction over the proposed area of intended employment at the county level. The job order must outline the job title, proposed job duties and responsibilities, and the minimum educational and experience requirements for the offered position including any other special criteria. This job order is placed by the local SWA for a period of 30 days. At the conclusion of the 30 days, the employer must also wait another 30 days before being eligible to file the form ETA 9089 with the DOL.

Document Retention

During the recruitment process, the employer must also prepare a recruitment report in which it notes down the lawful job-related reasons why the employer rejected U.S. applicants and the number of U.S. applicants that were rejected in each category. This recruitment report, along with the recruitment documentation (tear sheets, print ads etc.), must be retained by the employer. While they do not have to be submitted with the ETA form 9089, the employer is still required to retain these records for five (5) years from the date of filing. This is because the DOL may conduct random audits of the filed ETA 9089, and if the employer's petition is selected for an audit, all these supporting documents must be submitted to the DOL for review. Among the supporting documents is also the prevailing wage determination report. This is a report that the employer requests with the SWA having jurisdiction over the proposed area of intended employment.

Application Process

Once all the recruitment efforts are completed, and the employer is in a position to attest that it cannot locate any suitable U.S. worker to fill the offered permanent position, the PERM application is ready to be filed. As part of the application, the employer must detail the recruitment efforts it undertook, and outline job duties, educational requirements, training, and experience for the offered position. At the same time, the employer must also outline the alien worker's relevant education and professional experience in the form ETA 9089. Upon electronic submission of the PERM application, , the DOL's national processing centers (located in Atlanta and Chicago) will review the submitted petition and if approvable, issue a certified form ETA 9089 by returning an original stamped form ETA 9089 to the employer or the employer's representative who filed the initial application. The adjudication period for the form ETA 9089 can be anywhere from a few weeks to a few months. However, if the field application is selected for a random audit by the DOL, the processing time will be considerably longer, and can take more than one (1) year in most instances.

Audit Triggers

Audit Notification can be issued for two reasons:

  1. To review the employer’s recruitment efforts (random audit), and
  2. If DOL decides that the job requirements on the PERM application are too restrictive.


After receipt of the Audit Notification from DOL, the Employer has 30 days to prepare and submit its response. The employer must submit evidence of all recruitment steps taken prior to filing its PERM application, along with the complete report of how many applicants responded to employer’s recruitment effort. The employer’s report must show how many people applied for the job with their education and technical qualifications, evidence of employer’s contact and interview and the result of the interviews. Also, the employer must address all questions raised by DOL in the audit notification. Finally, the response must be received by DOL in 30 days period; otherwise it may result in the denial due to not responding to the Audit Notifications.

Conclusion

There are panoply of laws and regulations governing the PERM process. Hence, a participating employer must ensure that it is in compliance and moreover, its policies do not have the unintended consequence of discriminating against U.S. workers. Employers can avoid fines and debarment from applying for immigration petitions if they implement compliance policies, best hiring practices and obtain the required professional legal representation.

Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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