PERM Prevailing Wage Determination FAQ
The PERM prevailing wage is in place to ensure employers pay their employees the minimum wage for that particular job. The organization responsible for determining this, National Prevailing Wage Center (NPWC) bases its determinations on data gathered throughout the United States. In order to make this determination, the NPWC aligns the job offered with the geographic region and skill level required for the position as well as education and required supervision. Keep reading for PERM prevailing wage determination FAQ and examples.
How the PERM Works
The PERM is a labor certification that the Department of Labor uses to help protect the jobs and working conditions of U.S. citizens. It does this by having employers go through an intensive recruitment process to ensure that there are no qualified U.S. workers available for the position in the area.
This recruitment process involves posting the job onsite and advertising for the job on at least three different mediums. Employers are also required to interview each likely candidate and hire anyone who fits the job. However, if the recruitment period yields no results, then the immigrant will be able to move on to the next steps.
This is a common area for employers to try and abuse the system by not adhering to the recruitment rules. This can result in either an audit or supervised recruitment, or both. With an audit, the DOL will ask to see all of the documents and receipts you’ve collected to support your recruitment process.
With supervised recruitment, the DOL will have a certifying officer oversee the entire recruitment process and the employer will need to send all documentation to the officer as the process goes along. Supervised recruitment can be issued before or after the recruitment process has happened, and if it is issued afterward, the employer will need to redo the process. Either an audit or supervised recruitment can add months to the PERM processing time.
What Is a Prevailing Wage?
The second way that the PERM protects U.S. workers is by having a prevailing wage requirement. This is different from the state or federal minimum wages. Instead, it’s the lowest wage that the employer can pay the beneficiary for the job they intend to perform.
This will be based on others in the geographic area that fill the same role with similar qualifications. For example, if other digital marketing managers in Louisville, Kentucky are making a certain amount on average, the DOL will use that to determine a prevailing wage for that job in that area.
Not only must the employer agree to pay the beneficiary at least this wage, but the employer must also show that they are financially capable of paying this wage. This can be done through income and bank statements, as well as evidence of the salaries of similar workers in the organization.
Employer Requirements for PERM Labor Certification
There are very stringent requirements the employer must follow for PERM labor certification.
- The position must be for a full-time job offer in the U.S.
- Requirements for the job shouldn’t be tailored to the foreign worker’s skillset
- The wage must adhere to the prevailing wage requirements (be greater or equal to)
- Demonstrate that there are no qualified domestic workers for the position and that the foreign worker will not affect the wages or conditions for U.S. workers
In certain scenarios, the employer can request that the prevailing wage determination be based on a private wage survey. To explore this option it’s best to consult an immigration attorney with experience handling private wage surveys.
PERM Prevailing Wage Determination Validity Period
For the prevailing wage determination, PERM applicants can request it either through mail or the iCert online system for their application.
U.S. Department of Labor
Employment & Training Administration
National Prevailing Wage and Help Desk Center
ATTN: PWD Request
1341 G Street, NW – Suite 201
Washington, DC 20005 – 3105
Frequently Asked Questions
Q. What is the PERM processing time?
The prevailing wage can take as little as a few weeks to over two months to be determined by the DOL. After that, the employer must run advertisements for the job for at least 30 days before waiting an additional 30 days for potential applicants to respond for a total of at least two more months for recruitment.
After the recruitment period, the ETA 9089 can be filed, which can take the DOL up to and over six months to process. However, receiving an audit or being issued supervised recruitment can delay your processing up to and over nine more months.
Therefore, the total time you can expect greatly varies. However, the bare minimum will be about eight to nine months. On the higher end, you might expect it to take as long as two years if your case is audited.
Q. What is the PERM “quiet period?”
The 30-day “quiet period” is the time when the employer must give for U.S. workers to respond to the recruitment efforts. After the job advertisements have been placed and posted, the employer has to wait at least 30 days before filing the ETA 9089. However, if the position is considered a professional occupation, the employer may choose to have only one of the three recruitment mediums take place during the 30-day quiet period.
Q. What visas require the PERM process?
The PERM is for certain categories of employment-based immigrant visas (green cards) including the EB-2 and EB-3 green cards. The EB-1, EB-4, and EB-5 green cards do not require a PERM and it can also be waived for the EB-2 if the beneficiary acquires a National Interest Waiver.
Q. Can I speed up the PERM with premium processing?
Unfortunately, premium processing is only for employment-based immigrant and nonimmigrant visa petitions (those that use the I-129 and I-140 forms). It cannot be used to expedite the PERM process.
Q. Is there a fee for the PERM?
There is no fee tied to the ETA 9089. However, the employer will most likely encounter costs when posting job advertisements during the recruitment process.
Q. Can I waive the PERM requirement?
Yes, but only under certain circumstances. The PERM cannot be waived for an EB-3 green card, but it can be waived for an EB-2. A beneficiary can do this by applying for a National Interest Waiver (NIW) and showing that his or her work in the U.S. would benefit the nation and that he or she is uniquely qualified to do this work. Also, the beneficiary must prove that the U.S. would benefit more from waiving the PERM requirement than enforcing it.
Q. What documents are required for PERM labor certification?
You’ll need a local Labor Market Analysis (evidence that U.S. workers are incapable/ineligible of performing this employment). This includes job orders, newspaper ads, prints of website job ads, U.S. Employer Audit File, immigrant petition and completed Form ETA 9089.
Q. How long does it take for the DOL to process a PERM application?
If you opt for the electronic route and include the audit adjudicating process, the DOL estimates that a clean application takes fewer than sixty days to complete. The time for audited cases may vary depending on what is requested. While we can’t say for certain how long your processing will take it should be around 60-90 days.
Q. What is the process for non-professional jobs?
To satisfy these requirements, the employer must first place a job order with the state workforce agency (for a period of 30 days) and place an ad in 2 consecutive Sunday editions of a local newspaper.
Q. What happens after filing ETA Form 9089?
After filing this form you’ll have to wait a few months for the DOL to adjudicate the PERM. From there they can either approve the PERM, deny it, or conduct an audit. If it’s audited, the Department of Labor will ask the employer to submit additional forms of evidence. Since this can become burdensome it’s advised to seek an immigration attorney.
Q. What is the 30-day hold period?
The 30-day hold or ‘quiet’ period is the time frame after completing most of the recruitment and filing the application. Once the PERM LC has been filed, employers must wait an extra 30 days for any additional job applications to come in.
Q. What if the employer finds qualified applicants in the U.S.?
If during recruitment, the employer is able to find willing and able U.S. workers and they accept the position then the PERM application will end at that point. At a later point, if the employer chooses, they can restart the PERM process.
PERM Prevailing Wage Determination Summary
Both employees and employees need to take the necessary time to review the PERM form during the filing process. Our PERM immigration lawyers can assist you in meeting the strict government deadlines as well as filing any necessary documents. If you receive a request for an audit, we will prepare and submit the paperwork in a timely manner.
PERM Prevailing Wage Determination Example
The determination you receive is valid from 90 days to a year. As soon as the employer receives the prevailing wage designated by the center, the employer is required to submit the recruitment file and PERM Labor Certification within the validity period.
To demonstrate the importance of filing the PERM petition within the prevailing wage determination period, here’s an example:
Company X intends to file a labor certification for Mr. Jones. Company X runs an ad for the PERM position 1 day before receiving their prevailing wage determination. The remaining ads are run during the prevailing wage validity period but it expires one day prior to Company X submitting the PERM petition. Due to faulty timing, the case will be denied because they did not begin recruiting or file the petition at the right time.
This situation could have been improved had Company X started the recruited process and/or filed the PERM petition during the validity period. It likely would have been approved had these been the circumstances. Again, it’s ideal to work alongside a knowledgeable attorney who has experience with PERM prevailing wage determination to avoid any sort of delays or denials like this.
How Our Immigration Attorneys Can Help
The PERM process can be complex and either an audit or supervised recruitment can set you back months or even years in your timeline. Therefore, doing it right the first time and avoiding easy-to-make mistakes can save you time, effort, stress, and money. That’s why it’s best to have an immigration attorney help you through the entire process so that you can rest easy knowing you have the best chances of a speedy and stress-free PERM process.
Our law firm offers consultations to individuals/businesses who are looking to retain a law firm to apply for employment-based or investment-based immigration petitions. If you have more concerns related to PERM prevailing wage determination, you can contact us by filling out this consultation form.