One of the most crucial first steps to getting most employment-based green cards in the U.S. is the PERM Labor Certification. While not all employment-based green cards require it, many of the more popular ones have it as a prerequisite to filing an I-140. It serves to protect the jobs and working conditions of U.S. citizens already working in the country. A major portion of this process involves having the employer go through a mandatory PERM recruitment period. Read our guide to discover everything you need to know about this complex process.
Overview
A permanent labor certification, issued by the Department of Labor (DOL), allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA).
Prior to submitting an ETA Form 9089, the Application for Permanent Employment Certification, the U.S. employer is required to conduct a PERM recruitment process for the available position. The PERM recruitment process must certify to the Department of Labor that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment.
The DOL has specific requirements that specify the recruiting efforts of the sponsor.
Firstly, the PERM recruitment requires an employer to differentiate between a professional and a non-professional position. This distinction directs the minimum level of education required for a classified professional or non-professional.
The minimum level of education for a professional classification is a Bachelor’s degree; however, the Department of Labor may classify an available position as a professional occupation, whether the employer originally indicated it or not. The specific DOL regulations direct the types of recruitment and the content of the advertisements.
Perm Recruitment Timeline & Process
The PERM recruitment timeline will vary depending on the position and whether it is categorized as a professional or non-professional. However, U.S. employers filing for the regular PERM Labor Certification must follow mandatory recruitment steps for at least 30 days, but no more than 180 days, before filing the ETA Form 9089 Application.
If the documents are filed past due or the recruitment process is conducted inaccurately, the application has a high risk of denial or of receiving an audit notice.
The PERM recruitment timeline includes a:
- 30-day SWA job order and two Sunday newspaper ads.
- After that, there is a mandatory 30 period in which the employer must wait before filing the ETA Form 9089, Permanent Employment Certification, to allow sufficient time for any final applications from U.S. workers to be received and reviewed by the employer.
PERM Recruitment Requirements for Professionals
- The U.S. employer is required to place the job order with State Wage Agencies (SWA) in the area of possible employment for 30 days, AND
- Place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment.
- The newspaper must be the most appropriate to the occupation and the workers likely to apply for the job opportunity, and most likely to bring responses from able, willing, qualified, and available U.S. workers.
- If the occupation is positioned in a rural area without a regular Sunday newspaper, the U.S. employer can publish the ad in a newspaper with the widest circulation.
- The U.S. employer may publish the ad in a professional journal to substitute for one of the two required Sunday newspaper advertisements
- The employer must also choose from 3 additional recruitment steps from a list of 10 alternatives provided by the DOL:
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- On-campus recruiting
- Trade or professional organizations/publications
- Private employment firms
- Employee referral programs with incentives
- Campus placement offices (While the preamble limits this to opportunities that require a degree but no experience, the final regulations are silent on this point)
- Local and ethnic newspapers (The preamble limits this “to the extent they are appropriate for the job opportunity.”)
- Radio and television advertisements.
PERM Recruitment Requirements for Non-Professionals:
- Place a job order with the local SWA serving the area of intended employment for a period of 30 days; and
- Place ads on two Sundays in newspapers of general circulation.
- The newspaper must be the most appropriate to the occupation and the workers likely to apply for the job opportunity, and most likely to bring responses from able, willing, qualified, and available U.S. workers.
- If the occupation is positioned in a rural area without a regular Sunday newspaper, the U.S. employer can publish the ad in a newspaper with the widest circulation.
PERM Recruitment Advertising Requirements
A Perm ad must have the following information:
- Employer Name
- Employer Address
- Employer Contact Information
- Jobsite location
- Detailed Description of Job Responsibilities
- Directions on how to send resumes/apply
Employer’s Responsibilities:
The PERM recruitment advertisement for the available position is not mandated to list an in-depth description of job responsibilities. However, it must be:
- Clear and precise.
- Adhere to the industry norm. The job requirements cannot be tailored to a specific worker’s qualifications.
- The job description cannot be unduly restrictive – unless compelled by business necessity.
- A foreign language requirement can not be included unless it is a core part of the business necessity.
The employer must promptly respond to any qualified resumes or applications submitted for the advertised position. Failure to manage all inquiries, résumés, job applications and interviews for all qualified applications can negatively impact the PERM process.
PERM Audits
Because the PERM recruitment process relies on attestations that employers make that they genuinely tested the labor, the Department of Labor also regularly conducts two types of audits:
- Targeted – these audits are triggered by certain red flags that show up in the ETA 9089, such as the employee and employer being related, or unusual or specific job requirements for the position that deter or disadvantage U.S. applicants. Targeted audits can be avoided by keeping your PERM regulations above board.
- Random – these serve to add uncertainty to the recruitment process to ensure that employers fully conduct and document the PERM recruitment process. They cannot be avoided, and you should perform your PERM recruitment with the knowledge that a random audit could be sent to you.
If you are a PERM applicant facing an audit, the Department of Labor will assign you a Certifying Officer (CO) to look over and adjudicate your case. The CO can request a targeted audit at any time during the review process. If an audit is requested, you can’t simply withdraw the application—you must respond or face serious consequences. For this reason, you should avoid any PERM recruitment practices that could result in an audit.
Getting an audit can easily add nine months to over a year to your PERM processing time. While random audits are unpredictable, you can take steps to avoid targeted ones. Having an immigration attorney help you through the PERM recruitment process can help.
Supervised Recruitment
If you do not respond to the audit notice appropriately or your response is otherwise not satisfactory, your CO may request supervised recruitment to be conducted. This means that the Department of Labor will oversee a PERM recruitment period for your employer, which may entail going through a second recruitment.
This is a time-consuming and demanding obstacle that is targeted rather than random, which means that it can be avoided. Each step of the recruitment process, from the job postings to the interviews, will need to be documented and sent to the DOL before moving forward. All resumes, applications, job descriptions, and reports will need to be submitted to the Department. Your ads will also need to be approved by your CO, who will likely also choose the placement of those ads.
To avoid this issue, you should work with your immigration attorney to respond quickly and appropriately to an audit request and make sure that your recruitment process is always legitimate. Any attempts to alter reports or skew the applicants will become apparent in an audit or a supervised PERM recruitment period.
Employer Finds a Qualified Candidate During PERM Recruitment Process
It is not uncommon for the employer to find a suitable candidate during the PERM recruitment process. After all, the purpose of the process is either to find a suitable worker and, if not, then bring one from abroad.
However, what are the implications of an employer finding a qualified candidate during PERM’s 30-day advertisement requirement? There are two avenues that this scenario might take.
- Firstly, if the candidate meets the job description requirements, goes through the application process, and is rejected by the employer, then it may trigger a PERM audit. A blatant rejection and disregard for qualified U.S. candidates is a red flag that goes against the core PERM regulations.
- Secondly, if the candidate does not meet the job requirements and the employer rejects their application, then there would not be any repercussions on the PERM process.
PERM Application Process
In general, the PERM application process follows this pathway:
- The employer requests a prevailing wage determination using Form ETA-9141 with the Department of Labor (DOL). The employer must agree to pay at least that wage once the foreign worker gets a green card.
- After receiving the prevailing wage determination, the employer must conduct recruitment efforts abiding by DOL standards to test the U.S. labor market and see if qualified U.S. workers are available.
- The employer files the PERM Labor Certification Application using Form ETA-9089 through the FLAG system.
- The employer must submit Form I-140 Immigrant Worker Petition to the USCIS along with the required documentation.
- Lastly, once the I-140 is approved foreign worker must submit Form I-485 Adjustment of Status Application and comply with the immigration regulations.
How VisaNation Can Help
The PERM process is a time-consuming and complex part of the employment-based green card rules. While that cannot be avoided, there are ways to help prevent unwanted obstacles like supervised recruitments and audits. By taking advantage of the help of an immigration attorney, you can pave the road for an easier PERM recruitment process.
VisaNation Law Group attorneys have years of experience helping employers go through PERM recruitment while avoiding targeted audits and supervised recruitment.
Let us help you increase your chances of success. Get in touch with one of their PERM lawyers.