Background: PERM Supervised Recruitment
The PERM recruitment process is intended to demonstrate to the USCIS that there are not enough domestic (U.S.) workers who are available, willing or qualified to accept the available position being offered to a foreign worker. In order for many beneficiaries to receive an employment-based green card, a U.S. employer must fulfill the PERM recruitment process that is required before submitting a labor certification application. However, the Department of State may choose your employer for PERM supervised recruitment. If this happens, here is what to expect.
Supervised recruitment is often requested by the Department of Labor Certifying Officer (CO) in the event that there’s been an unsatisfactory audit response or if the U.S. employer has neglected to respond appropriately to the audit letter sent.
As the name implies, supervised recruitment involves the Department of Labor keeping a close eye on and supervising the employer’s recruitment process until a decision is made whether to approve or deny the PERM certification. It’s important to note that supervised recruitment may be initiated for either a PERM petition that has already been filed or even a new petition.
Supervised PERM Recruitment Process
In all cases, the U.S. employer shall not begin recruitment without the certifying officer’s request and it is the CO’s responsibility to dictate when, where and how the formal recruitment will be conducted.
How does this differ from the regular PERM process?
PERM supervised recruitment differs significantly from the regular PERM process because overall it is more time consuming, demanding and each step requires formal oversight. The U.S. employer must submit a proposed ad in draft form to the certifying officer within 30 days of the supervised recruitment request.
Assuming the ad is approved, the certifying officer will then direct the placement of the ad; normally it will be in a newspaper. If the CO decides that the proposed ad will be placed in a newspaper, it must run for 3 consecutive days with one day in a Sunday newspaper.
Ad Description- PERM Supervised Recruitment
Within the ad, applicants should be informed to send any applications or resumes directly to the certifying officer with their personal identification number as well as an address. The CO will then forward these position-related documents to the employer so that both parties have a complete overview of the eligible applicant pool. If the employer receives any applications directly, they must be included in the final report of recruitment sent to the officer.
Any resume’s received should be reviewed by the employer first. The Department of Labor maintains this rule very strictly. This means that any resumes that are sent should not be seen by an attorney or any other third party until the employer has reviewed them. The employer must also note that each resume must be equally considered for the position. This is especially true under the heavily scrutinized environment of the supervised recruitment process.
Details of the Ad
The ad is required to include:
- A complete job description
- The offered wage rate (that meets or exceeds prevailing wage)
- Details the minimum job requirements
- Must specify if job training is required
Normal PERM recruitment ads must include:
- The employer’s name
- The employer address
- The employer’s contact information
- A detailed description of job responsibilities
- Mention of a wage that is equal or beyond prevailing wage
The certifying officer may require additional information for the purpose of supervised recruitment. For example, if the ad details that extreme heavy lifting is required and the CO does not agree, you may be required to submit proof of the business necessity of the requirement.
Ending Supervised Recruitment Process
The employer’s certifying officer will make known when the recruitment period is over and ask them to gather the recruitment documents necessary for the report in addition to the deadline date. Generally, a recruitment report is supposed to be submitted in a period of 30 days from the CO’s request. However, an additional 30-day extension may be available depending on the specific circumstances.
It is important to note that, while an extension is extended to certain employers, your employer should avoid relying on this as the extensions are granted on a case-by-case basis. Working with an immigration attorney can help inform your employer learn if they are qualified.
The final report must be signed, and include the employer’s documents and information. If no response is provided in the time frame, the certifying officer has the right to deny the application.
Regular PERM Recruitment Requirements
As with the supervised recruitment process, the normal PERM recruitment process also requires a U.S. employer to place a job order for a period of 30 days and 2 print ads in Sunday newspapers which have wide local circulation. If for whatever reason the area does not have a Sunday newspaper with wide circulation then the employer should publish the ad in another newspaper.
Additional Recruitment Step: (An employer must use 3 additional recruitment steps from a list of 10 alternatives provided by the DOL):
- Recruitment at job fairs that are related to your open position
- Ad placed on employer’s website.
- Ad placed on a job search website other than the employer’s site.
- On-campus recruiting. This is only appropriate if the position does not require a significant amount pf previous experience to fill.
- Ad placed in trade or professional organizations/publications such as an academic journal.
- The use of private employment firms.
- Employee referral programs with incentives such as benefits, bonuses, or increased vacation time for successful referrals.
- Local 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.
Each source of advertisement must be mentioned by name along with any documentation related to that ad. This may include email correspondence, contracts, or receipts that prove that the ad was placed for the required duration.
For Non-Professional PERMs (meaning PERM certifications for beneficiaries that do not hold bachelor’s degrees or higher), the same requirements apply.
PERM Supervised Recruitment FAQ
Below are some of the most common PERM supervised recruitment questions and answers. Be aware that this is general information and may or may not apply to your case.
Q. What is PERM recruitment processing time?
PERM recruitment processing time varies from case to case. However, U.S. employers who are filing for the regular PERM LC are required to submit their documents at least 30 days (but no more than 180 days) prior to filing the application. This means that the entire recruitment process must end at least 30 days before the application is filed
Q. What happens if the recruitment submission is late?
In the event that documents are filed past due or the recruitment process is conducted inaccurately, the application has a high chance of being denied.
Q. What does PERM mean?
The acronym PERM stands for Program Electronic Review Management process. This is the process used for labor certification applicants.
Q. Who determines the prevailing wage for the PERM process?
The National Prevailing Wage and Help Desk Center is responsible for determining the prevailing wage. At one point the SWA was involved. However, that is no longer the case.
If you want to know more about this topic, don’t miss our post on PERM Prevailing Wage frequently asked questions and answers.
Q. Who is considered the petitioner for the PERM labor certification?
The U.S. employer must file the PERM application, so they are considered the petitioner. The foreign national who will be receiving the employment-based green card is considered the beneficiary of the application.
Q. Is there a way to know if my employer will be selected for PERM supervised recruitment?
The short answer is no. Just like the auditing system, supervised recruitment is designed to keep U.S. employers from taking advantage of the immigration system and removing job opportunities from qualified U.S. workers.
However, there has been evidence to show that the DOL may target areas that have a higher rate of layoffs as well as employers that are related to industries such as the automotive or technology industries.
Q. Is there a difference whether you file your application electronically or via mail?
There is a difference when you file the application electronically. First of all, using the electronic method ensures that the application arrives at the processing faster, whereas traditional mail may be delayed. Usually, when filed by paper, the processing time will increase by about 2-3 months.
Q. What is the PERM supervised recruitment success rate typically?
It’s hard to specify an exact number because that information is not made readily available. We can say that VisaNation Law Group’s lawyers have in-depth experience handling these sorts of cases.
Q. What is the difference between PERM supervised recruitment and a PERM audit?
Supervised recruitment means that the DOL will require you to submit documentation for each step of the PERM recruitment process to the Department before moving on. This means that all resumes will need to be sent and that all ads will need to be reviewed before being posted.
With an audit, the DOL will want your recruitment report and your hard-copy ETA-9089, certain affidavits, evidence of your ads, and all resumes received during the process. The DOL will then process all of this after the initial PERM application has been processed, adding up to nine months to the processing time.
Q. Will I need to restart the recruitment process if I am selected for supervised recruitment?
This depends on the circumstances. Many times, if an employer has a history of dubious activity during past PERM applications or has incurred several targeted audits, the DOL may have them go through supervised recruitment before beginning the process.
However, if the DOL decides to trigger supervised recruitment after your recruitment period, you will need to start from the beginning over again. This not only drastically increases the amount of time and effort invested in the process, but also opens the position up a second time to be filled by a U.S. worker.
One of the prime ways that this is triggered is if the DOL issues an audit and receives an unsatisfactory response. Here is an example to illustrate:
Tech LLC is sponsoring Joan for an IT manager’s position. After going through the entire recruitment process, Tech LLC sends a recruitment report that does not accurately represent the expected recruitment response. The DOL issues an audit and gives a deadline for a response.
Unable to prove that it met the recruitment standards in the timeframe, Tech LLC sends an incomplete response to the audit, which causes the DOL to have Tech LLC conduct their recruitment under the direct supervision of a Certifying Officer.
Q. What is the purpose of the PERM Labor Certification?
The purpose of the PERM is to make sure that there aren’t any qualified U.S. workers in the area of employment. The idea is to prevent employers from using the immigration system to replace American workers with foreign labor.
Q. How much does the PERM application cost?
Fortunately, the PERM Labor Certification carries no official filing fees with it. However, you will need to take into account the cost of running the necessary ads for the recruitment process.
Q. Is the PERM required for all green card cases?
The PERM is required for most of the employment-based green card categories. The only exceptions to this are the EB-1 and the EB-5. If you are applying for a family-based visa, you will not need a Labor Certification.
Q. Once the PERM has been approved, how long will I have to file the I-140?
When your PERM has been issued, your employer needs to file your I-140 within 180 days (six months) of that date. If your employer waits too long and the PERM expires, they will need to obtain another PERM before filing the petition.
Q. Where can I find my PERM status?
If you filed on-line then your status will be found on that portal. Case numbers that are preceded with a “T” indicate that the application has not been formally “filed” and is still as a temporary draft. Applications with “in process” status mean that it’s moving through the certification process. A “withdrawn” status means the employer has withdrawn the application. Finally, a “denied” status as you may guess, means the application was denied.
Received a denial notice? Take a look at this post detailing the additional options available. Some of these options include an appeal or request for review. A PERM lawyer can better decide what choice is optimal.
PERM Attorney Fee
The Department of Labor does not have a filing fee for a PERM petition. However, the USCIS has a filing for of $580 for the I-140 petition. The attorney fee for a PERM certification and advertising costs must be paid by the employer and cannot be forced by the applicant to pay.
RELATED PERM Supervised Recruitment TOPICS
- PERM Labor Certification
- PERM Labor Certification Audit
- PERM Denial After Audit
- PERM Prevailing Wages
- PERM Prevailing Wage Determination FAQ
- PERM Recruitment
- PERM Advertising Requirements