What Is PERM/Labor Certification?
In most instances, a foreign national seeking to obtain U.S. lawful permanent residence through employment must be the beneficiary of an approved application for permanent employment certification or PERM/Labor Certification. The PERM/Labor Certification application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are immediately available to accept the offered position at the prevailing (or average) wage for the area of intended employment.
On December 27, 2004, the procedures for employers to sponsor foreign nationals for employment-based immigration changed as the U.S. Department of Labor (DOL) published the final regulation for the Program Electronic Review Management (PERM) system to streamline the labor certification application. This procedure, which took effect on March 28, 2005, includes the following process for filing a PERM/labor certification application.
Requirements Under the PERM/Labor Certification Process
The U.S. employer is currently required to obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC). NPWC will make PWD determinations based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located.
After obtaining a PWD, the employer is required to post a printed, internal job notice for at least 10 consecutive business days. This notice must be posted between 180 and 30 days before filing the PERM/labor certification application. In addition to the job posting, the employer must use its standard in-house electronic and printed methods for advertising the position.
Other recruitment efforts that must be made before filing the PERM/labor certification application include placing a job order with the State Workforce Agency (SWA) and placing two Sunday newspaper advertisements. The SWA job order must be placed for a period of 30 days. The Sunday newspaper advertisements must be published in a newspaper of general circulation in the area of intended employment. The advertisements must be printed within 180 days, but no less than 30 days before filing the PERM/labor certification.
Additional recruitment requirements apply to employers seeking to hire someone in a professional occupation, which is generally one that has been listed by the DOL. If the occupation qualifies as professional, the employer must undertake three recruitment steps in addition to the steps outlined above. The three steps must be chosen from the list provided in the regulations. The following venues are permissible for additional recruitment for professional positions: (a) job fairs; (b) the employer’s website; (c) job search website other than the employer’s; (d) on-campus recruiting; (e) professional or trade organizations (i.e., placing an advertisement in their newsletter or journal); (f) private employment firms that conduct recruitment; (g) an employee referral program that provides incentives; (h) campus placement offices; (i) advertisement in local and ethnic newspapers; (j) radio and television advertisements; and (k) webpage advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the PERM/labor certification application; however, only one of the three steps can take place within 30 days of filing the PERM/labor certification.
In order to prepare the advertisements, the employer must take care to draft an accurate description of the job as well as the skills, education, and experience required in order to satisfactorily perform the duties. The advertised requirements for the position must meet two criteria. First, the skills, education, and/or experience must be the actual skills, education, and/or experience required to satisfactorily perform the duties of the position. That is, we cannot require that applicants possess certain skills or experience simply because the beneficiary of the PERM/labor certification application possesses those skills or experience.
DOL has established guidelines for different occupational categories and these guidelines determine the amount of education and experience that can be required for a given occupation. Requirements that exceed the range established by DOL are considered “unduly restrictive,” meaning that the sole function of these requirements is to reject U.S. workers who are otherwise qualified for the position. An employer, however, may require experience and education in excess of the range established by DOL by showing “business necessity,” which means that the requirements bear a reasonable relationship to the occupation in the context of the employer’s business, and are essential to perform, in a reasonable manner, the job duties as described by the employer.
Second, the beneficiary of the PERM/labor certification application must have possessed the skills, education, and/or experience being required prior to joining the employer. The employer, however, can require experience or skills obtained on the job if the employer can show that the position in which the skills and experience were acquired is sufficiently different from the position being applied for in the PERM/labor certification application. A position is “sufficiently different” if the job duties are at least 50 percent different. An employer may also be able to justify “on the job experience” if it can be demonstrate that it is infeasible to train a U.S. worker.
After the advertisements and job orders are placed, the employer will receive résumés from interested applicants. The employer must review those resumes to determine if there are any qualified and available U.S. workers who are willing to accept employment at the prevailing wage. Upon completion of this resume review and evaluation, and before submitting the PERM/labor certification application, the employer must prepare a recruitment report for its internal files. The report must document the recruitment steps undertaken and the results achieved. It must include the number of individuals hired and if applicable, the number of U.S. workers rejected, summarizing the lawful job-related reasons for their rejections. It is lawful to reject a U.S. worker for the position if he or she does not meet the employer’s stated minimum requirements. It is not lawful to reject a U.S. worker if he or she can obtain the required skill(s) after a reasonable period of on-the-job training. The employer must sign the recruitment report and retain all supporting documentation, including evidence of the advertisements and the resumes received in response to the recruitment effort, for a five-year period starting from the date of filing the PERM/labor certification application.
Submission of the PERM/Labor Certification
If the employer determines that there are no qualified and available U.S. workers for the offered position, then the recruitment has been completed and the PERM/Labor Certification Application, Form ETA-9089, can be submitted electronically. If the PERM/Labor Certification application is not selected for an audit, DOL will certify (approve) it after more than six months from the date of filing. If the PERM/Labor Certification application is selected for audit, the application is likely to be approved after over one and a half years from the submission of the audit response. These are approximate time frames based on recent trends, and they may vary from year to year. A certified PERM/Labor Certification application must be immediately signed by the employer who will then submit the certified and signed application along with the immigrant petition to U.S. Citizenship and Immigration Services (USCIS) to sponsor the foreign national for an immigrant visa.
If a PERM/Labor Certification application is selected for an audit, the employer will receive an audit letter from the certifying officer (CO) of DOL asking the employer to provide certain documentation and specifying a reply date of thirty days from the date of the audit letter. If the reply date is not met or if the CO does not provide the employer with an extension, then the PERM/Labor Certification application will be denied. An audit can be triggered randomly or based on information provided in the employer’s PERM/Labor Certification application. Please also note that a PERM/Labor Certification application may be selected for Supervised Recruitment. This would require the employer to again conduct recruitment under the close supervision of the DOL. All resumes from US worker applicants will be forwarded to the DOL, which will then refer them to the employer.
After PERM/Labor Certification
Keep in mind that if the PERM/Labor Certification application is certified and the employer wishes to proceed to the next step, filing the employment-based immigrant petition (Form I-140) with USCIS, the beneficiary will be required to provide documentation to establish that he or she met the advertised requirements for the position on the date that the PERM/Labor Certification application was filed. Accordingly, the beneficiary of the PERM/Labor Certification application will be required to provide copies of college degree(s) with transcripts and employment confirmation letters that discuss the beneficiary’s role within the company and the skills used in carrying out specific duties. It is important to note that the Form I-140 petition must be filed within 180 days from the date of the PERM application certification. There are no exceptions to this 180 day deadline, unless a new I-140 petition is being filed after the previous I-140 was filed timely within 180 days. This may happen when there is a new successor in interest entity after a corporate reorganization or where a new petition is being filed in a new visa category.