The U.S. employment-based immigration system involves several steps, one of the most important of which is the labor certification process. This is handled by the Program Electronic Review Management (PERM) system. PERM ensures that before a U.S. employer can hire a foreign worker for a permanent position, there are no qualified American workers willing or available to fill the job. While the process may seem complex, understanding each step can help pave the way to a successful labor certification..
What is the PERM process?
PERM is an essential part of employment-based immigration for individuals seeking green cards under the EB-2 (professionals with advanced degrees) or EB-3 (skilled workers, professionals, and other workers) visa categories. The U.S. Department of Labor (DOL) requires employers to test the labor market for qualified U.S. workers before filing an application to hire a foreign national.
At its core, the PERM process is designed to protect the interests of U.S. workers by ensuring that foreign workers are hired only when no qualified domestic worker is available for the position.
Key Components of the PERM Process
- Job Description and Requirements
- The employer must provide a detailed job description that outlines the duties, responsibilities, and requirements of the position. This description will play a critical role in the recruitment process, as it must be consistent with job advertisements and other recruitment efforts.
- Job requirements cannot be tailored to a specific foreign national. They must reflect the minimum qualifications necessary to perform the job and be consistent with industry standards.
- Prevailing Wage Determination
- Before recruiting begins, the employer must obtain a prevailing wage determination from the Department of Labor. The prevailing wage is the average wage for workers in a particular occupation and geographic location, ensuring that the foreign worker is paid a fair wage comparable to what U.S. workers earn in similar jobs.
- The DOL considers several factors in determining the prevailing wage, including job title, responsibilities, and location. The employer is required to pay the foreign worker at least the prevailing wage or higher.
- The Hiring Process
- The recruitment process is the heart of the PERM labor certification. It is designed to ensure that no qualified U.S. worker is available to fill the position.
- The employer must advertise the job in a variety of media, including two Sunday newspaper advertisements, a posting with the state employment agency, and other professional or job-specific avenues, depending on the job category.
- The recruitment must be conducted in good faith, meaning that the employer must give serious consideration to any U.S. worker who applies for the position. If a qualified U.S. worker is available, the PERM petition cannot proceed.
- Recruitment Report
- Once the recruitment process is complete, the employer must prepare a recruitment report detailing the results. This includes documenting the total number of applicants, the reasons for rejecting each U.S. worker (if applicable), and how the foreign worker meets the job qualifications.
- This report is submitted with the PERM petition to the Department of Labor and must be thorough, as it may be audited at any time.
Step-by-step breakdown of the PERM process
Step 1: Define the position and its requirements
The first step in the PERM process is for the employer to carefully define the position for which they are seeking foreign workers. The job description must be clear and outline the exact duties, education, experience, and skills required for the position.
Employers must avoid setting overly restrictive requirements that could exclude U.S. workers, unless the requirements are essential to the job. For example, an employer cannot require 10 years of experience for a job that generally requires only five years.
Step 2: Request the Prevailing Wage Determination
After defining the job description, the employer submits a prevailing wage request to the DOL. The DOL will issue a wage determination based on the job category, location, and skill level. This step is critical because offering a wage below the prevailing wage may result in the denial of the PERM petition.
Employers must ensure that they are prepared to pay the foreign worker at or above the prevailing wage from the start of the employment.
Step 3: Conduct the Hiring Process
The recruitment process is one of the most time-consuming steps in the PERM process. During this phase, the employer must advertise the position to potential U.S. workers. Recruitment efforts typically include
- State Workforce Agency Posting: This is a mandatory listing of the job on the state workforce agency’s website for at least 30 days.
- Sunday Newspaper Ads: The employer must place two Sunday advertisements in a newspaper of general circulation in the geographic area of the position. For professional positions, ads must also appear in job-specific venues.
- Additional recruitment steps (for professional positions): For professional positions, the employer must take at least three additional recruitment steps from a list provided by the DOL. These steps could include advertising on the employer’s website, attending job fairs, or posting ads on online job boards.
The recruitment phase must be completed within six months of filing the PERM petition, and the employer must maintain detailed documentation of all recruitment activities.
Step 4: Review Applications and Prepare Recruitment Report
After the recruitment period ends, the employer must review all applications received. If a qualified U.S. worker applies for the position, the employer must carefully document why that worker was not hired. This is a critical part of the PERM process because the DOL will scrutinize this decision to ensure that there is no discrimination against U.S. workers.
After reviewing the applicants, the employer prepares a recruitment report summarizing the recruitment efforts and the reasons for rejecting any U.S. workers who applied. The report is not filed with the PERM petition, but must be available in the event of an audit.
Step 5: File the PERM Application
Once the recruitment report is complete, the employer can file the PERM application (Form 9089) electronically through the Department of Labor’s website. The form describes the position, the foreign worker’s qualifications, and the results of the recruitment efforts.
The DOL reviews the petition, and if everything is in order, the petition is certified. This certification allows the employer to proceed with filing an immigration petition for the foreign worker.
Potential Delays in the PERM Process
While the PERM process is structured, it is not without its challenges and delays. Here are some factors that can prolong the process:
- Audits
- The DOL may choose to audit a PERM petition, either randomly or based on problems identified in the petition. Audits can delay the process by several months and require the employer to provide additional documentation, including the recruitment report and proof of good faith efforts to hire U.S. workers.
- Prevailing Wage Determination Delays
- Prevailing wage determinations can sometimes take several months, especially if the job is highly specialized or falls into a less common category.
- Incomplete or Erroneous Applications
- Errors in the PERM application or employment report may result in denials or requests for additional information, further delaying the process.
- Labor market conditions
- If the job market is particularly competitive, the employer may receive more applications from U.S. workers, increasing the likelihood of a qualified candidate and complicating the hiring report process.
After PERM Certification: What’s Next?
Once the PERM petition is approved, the employer may file an I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS). This petition must be filed within 180 days of the PERM approval.
The I-140 petition establishes that the foreign worker is eligible for a green card based on the approved labor certification. After the I-140 is approved, the worker can apply for adjustment of status if he or she is already in the U.S. or apply for an immigrant visa through consular processing if he or she is outside the country.
Successfully navigating the PERM process
Navigating the PERM process can be complex, but careful preparation and attention to detail can greatly improve the chances of success. Employers must ensure that job descriptions are accurate, recruitment efforts are genuine, and all documentation is thorough. Foreign workers, on the other hand, should stay informed and maintain close communication with their employer and legal counsel throughout the process.
With a clear understanding of each step, foreign nationals can increase their chances of successfully obtaining employment-based permanent residence in the U.S. through the PERM process.
