PERM Advertising Requirements & Process
For many work visas and employment-based green cards, the first step is to obtain a PERM labor certification from the Department of Labor (DOL), which requires an extensive PERM advertising process. These procedures exist to ensure that employers are not taking advantage of the immigration system to deprive qualified U.S. workers of potential jobs.
Before submitting the PERM, the petitioning employer is required to complete the proper recruitment steps for the job in questions. In regards to the process, PERM advertising and recruitment can be quite complicated due to the very stringent advertising requirements.
PERM advertising regulations require that the proper recruitment steps be fulfilled for both professional and non-professional job positions. It’s necessary to note that all petitioning employers must attest to completing the PERM advertising and recruitment requirements before moving onto the application.
If the DOL suspects that the advertising process was not completed in a satisfactory manner, then you may be subject to a targeted audit. This can seriously delay the processing time of your employee’s work visa or green card. While some audits are random and therefore unavoidable, following the PERM advertising process carefully can help mitigate the chances of being targeted by the DOL.
PERM Advertising Process
Below are the mandatory recruitment activities required for both professional and nonprofessional occupations. Note that this process aims to cover all of the major avenues by which workers seek employment so that the DOL can be reasonably sure that you have made a legitimate effort to find a suitable U.S. worker to fill your position.
1. Placing a Job Order
Employers are required to place a job order with the appropriate State Workforce Agency (SWA). It is important that this job order is placed with the state workforce agency that corresponds to the state in which the work will take place.
For example: If you are an employer located in California that has a position open in a branch in Texas, then you must place the job order with the Texas workforce agency instead of the California workforce agency.
Once you have placed the job order, you need to let it run for at least thirty (30) consecutive days, including weekends. Many prospective employers choose to allow the order to run for a few days longer to avoid the complications that can arise from not adhering to this 30-day regulation.
After the job order has ended its run, you must wait at least 30 more days before filing your ETA 9089 form. So, if your job order ran from January 1st to January 31st, you would not be able to file the ETA 9089 form until March 3rd. The reasoning behind this PERM filing process is the give potential U.S. job applicants the opportunity to apply for the position after the order has been placed.
As with many of the documents related to the PERM ad requirements, we recommend you keep printed copies of the SWA’s job posting as part of your PERM labor process documents.
2. Ads in Newspaper/Professional Journals
You are required to place a job ad in 2 Sunday editions of a local newspaper with wide circulation in the area of intended employment. So, if the position will take place in Miami, your ad should be in the Miami Herald or a paper with similar recognition.
If the position is in a rural area which does not have a Sunday edition, the employer should use the newspaper that has the widest circulation.
The PERM ad requirements state that the ad must include:
- Your business name
- Instructions detailing where applications and resumes should be sent
- A general overview of the position that gives potential applicants a good idea of what is entailed
- Possible mitigating factors such as job location and/or travel percentages
3. Internal (in-house) Job Posting
Also known as a notice of filing (NOF), an internal job posting should be posted for 10 consecutive business days on your company’s physical premises. If it’s a union position, proper notice must be given to the representative.
The NOF needs to include very specific language that alerts your current employees that you are in the process of obtaining a PERM Labor Certification. This must also give them the opportunity to submit documentary evidence that has a bearing on the application.
According to the regulations, it must contain the following information:
- business name and location
- general job description
- wages and other compensation
- your contact information including an address to send resumes
It is important not to ignore or forget this step as it can be the difference between the success or failure of your application. Working alongside a qualified immigration lawyer can help ensure that this aspect is not overlooked and is satisfactorily completed.
4. Additional PERM Ad Requirements
On top of the above requirements, an employer can choose a combination of any 3 additional recruitment methods outlined below to meet the additional recruitment requirement for professional positions:
- Participation in a job fair that has a high likelihood of bringing in applicants that are qualified for your position.
- Posting an ad on the company’s website. Be sure to keep a record of the internet screenshots taken of these ads.
- Using a job search engine other than your own company’s website such as Monster.com or Indeed.com.
- Participation in on-campus recruiting if the job does not require several years of relevant experience.
- Placing an advertisement with a trade or professional organization. This could involve advertising in a relevant academic or professional journal.
- Using the services of a private employment firm. Be sure to keep copies of all contracts and correspondence between you and this firm.
- Incentivising employees to refer new recruits through rewards or benefits such as bonuses or vacation days.
- Placing an ad with a local college’s campus placement office.
- Posting an ad in the local and ethnic newspapers of the relevant work area.
- Taking advantage of radio and television advertisements. To prove that this ad took place, keep a record of all contracts and payments made between you and the advertising station.
It is important to note that each of these ads can have a PERM advertising duration of any length of time whether it be just one day or several. The choice is up to you. However, you must wait at least 30 days after the end of your ad campaigns to file your ETA 9089 form. Becuase of this, it is often advisable to run the job order, notice of filing, and all ads as concurrently as possible to avoid unnecessary delays.
Here is a PERM advertising sample that was posted online containing the information required in each ad:
Note: You don’t need to include every minute detail pertaining to the job within the advertisement but it should be thorough and include the basics like the name of the employer, address, contact information and job outline. You do not necessarily need to include the wage within the advertisement. However, if you choose to include it then it should not be lower than the Prevailing Wage Determination.
Non-Professional PERM Advertising Requirements
Non-professional positions are only required to fulfill two of the steps. Those are placing a job order with the State Workforce Agency (for 30 days) and placing the job ad in 2 consecutive Sunday newspapers.
PERM Requirements for EB2 Green Cards
If you are an employer looking to sponsor someone for an EB2 green card, PERM Labor Certification will most likely be required. However, there are certain situations in which an applicant is able to self-petition through the use of a National Interest Waiver (NIW) which excuses the applicant from needing a job offer or a PERM.
To obtain an NIW, the applicant must be starting or investing in an enterprise that the USCIS deems as having a substantial positive impact on the national society, economy, or culture. The applicant must also prove that requiring a PERM in this situation would not benefit the national interest.
If you are a prospective EB2 green card applicant and you believe that you may qualify for an NIW, talk with your immigration lawyer to learn about the steps you need to take.
PERM Recruitment after Advertising
Once the job has been advertised, the employer is responsible for interviewing the candidates who have met the requirements including U.S. citizens. Should the employer reject U.S. citizen applicants, then you must document the reason for this in the recruitment report.
The reason should be lawful and non-discriminatory. All recruitment should take place 180 days before filing the labor certification application and should be completed 30 days before submitting the ETA 9089 form.
Due to the complexity of PERM recruitment and advertising, it’s best to consult an immigration attorney to ensure the proper steps are being followed.
Documents Required from the Employer
Paper documentation is required throughout each step of the process. That means the employer should have copies of resumes, applications, recruitment reports when conducting interviews, etc.
The recruitment report will also detail the number of hires as well as U.S. workers not hired for the position. Be aware that there needs to be enough detail about the rejected U.S. workers for an auditor to scan if that occurs.
Also, as stated before, you should keep a meticulous record of all correspondence, contracts, and payment receipts concerning your ad campaigns to provide sufficient proof that you took the necessary measures to find a qualified U.S. job applicant.
Boundaries When Rejecting U.S. Workers
There needs to be clear and lawful evidence for rejecting a U.S. worker. As the employer, you need to judge whether the U.S. applicant could fill the job with a reasonable amount of on-the-job training (if necessary). For example, you wouldn’t expect an employer to spend several months training a worker in one of five necessary skills.
Use your best judgment to evaluate each candidate and seek the advice of a qualified attorney for more information. There may be PERM changes quickly approaching in line with the Obama Immigration Plan. In particular, the DOL is focusing on techniques to identify shortages/surpluses as well as updating the general requirements.
How Our PERM Attorneys Can Help
PERM advertising and recruitment can be a complex process if not handled correctly. Our lawyers at SGM Law Group have a solid understanding of the regulations and can guide you through the entire process from beginning to end. If you have any further questions regarding the PERM advertising requirements or process, feel free to fill out this form so that you can schedule a consultation with one of our attorneys.