Houston PERM Labor Certification Attorney

PERM – Labor Certification

What is PERM labor certification?

PERM is an acronym for “program electronic review management process” and is latest DOL online procedure for filing a work certification application (Form ETA-9089). It became effective on March 28th, 2005, and all labor certifications filed after that date must be filed electronically under the PERM process. People use the term “PERM” to refer to a labor certification.

It requires a petitioning company to conduct a series of recruitment activities to test the job market prior to applying with the DOL. If no qualified and willing applicants (US citizen or permanent resident) are found through the recruitment process the employer will be able to submit the Form ETA 9089 online with DOL.

Recruitment and other supporting documents are not submitted at the time of filing the Form ETA -9089. However, the petitioning employer is required to attest that all recruitment documentation is ready and available prior to submission. If the Department of Labor (DOL) should audit the organization then the information collected during the process must be presented within 30 days.

In electronically filed documentary application should be adjudicated in approximately 45- 60 days according to the federal regulations. However, most applications will be adjudicated in more than that period.

Who needs PERM certification?

Generally, PERM labor certification by DOL is a first step in filing most employment-based petitions. With a few exceptions, immigrant petitions involving professionals with advanced degrees or exceptional abilities (EB2), and professionals with bachelor’s degrees, skilled workers, and unskilled workers (EB3) required this kind of certification from DOL. Immigrant petitions in the following categories are NOT required to obtain authorization from DOL:

  • Foreign Nationals with extraordinary abilities,
  • Outstanding researchers / professors,
  • Intra- company transferees for multinational executives (EB1),
  • NIW or National Interest Waivers,
  • Investors (EB5),
  • All family-based immigrant petitions.

What is a general procedure for PERM?

The process involves a thorough review of the foreign national beneficiary’s qualifications, the job position offered, the employment setting, the strategic design, requirements for the work to be rendered, the detail arrangement, follow up of the hiring schedules, the compliance of assignment procedures, the proper documentation, and technical review of the ETA- 9089.

The general procedure for filing the PERM is described below:

For successful cases, the DOL will certify (approve) after the online submission of the FORM ETA-9089. Some cases can be approved in a single day, and others could take up to one year.

If the DOL chooses to audit the application, the employer must submit all the requested documentation within 30 days. If the employer fails to submit a response within that time, the DOL will not only deny the specific case but also require future applications from the same employer to go through a more scrutinize review process.
After reviewing the employer’s information submitted in an audited case, the DOL may certify the petition, deny the petition, or ask the employer to go through a supervised recruitment.

The PERM process is a complicated process and assistance and expert guidance from experienced immigration attorneys is highly recommended. At the Law Offices of ADAN G. VEGA & ASSOCIATES, PLLC, our highly experienced attorneys have successfully represented many PERM/ labor certification cases.

What are the requirements?

The PERM process imposes specific requirements on the employer who must attest to the following upon filing of the FORM ETA-9089 application with DOL:
Advertising and Recruitment

The DOL changed the advertising requirements of the verification process to ensure every possibility is given to hire US workers over foreign workers. The employer’s organization must conduct mandatory recruitment activities no more than 180 days but no less than 30 prior to the date of submitting the ETA – 9089:

  • Place an advertisement on “two different Sundays in the newspaper of general circulation”; or if it is for a job position requiring an advance degree, the employer can place the advertisement in a national professional journal AND in one Sunday edition of the newspaper of general circulation;
  • Place a job order with the state workforce agency for 30 days;
  • Post an internal job posting with all required information for a period of 10 consecutive days; or give proper notice to the bargaining representative if the role is a union job position;
  • If the job position offered is a professional position (all EB2 cases and most a EB3 cases that require a degree), the federal regulation requires at least three (3) of the following options during the period mentioned above:

  • Posting fairs;
  • Company’s website;
  • Other career search websites;
  • On campus recruiting (usually for no experience job position);
  • Trade or professional organizations;
  • Private employment firms;
  • An employee referral program, if it includes identifiable incentives;
  • A notice of the opening at a campus placement office, if the profession requires a degree but no experience;
  • Local and ethnic newspapers, to the extent they are appropriate for the opportunity;
  • Radio and television advertisements

Though the supporting documents are not submitted at the time of online filing of the FORM ETA-9089, the employer must keep a full set of all documentation for at least five (5) years from the date of submission.

The above requirements may be waived for a tenure- track teaching position at a university or college if the job position is offered through a competitive selection.

What factors may affect the PERM labor certification process?

These factors might have an impact on the outcome of the case matter:
  • Company sponsorship – it is very important to have a cooperative relationship between the foreign national and the employer;
  • Status of the US economy on a regional and local level;
  • Shortage/surplus of job candidates within the local area;
  • Nature of the profession and whether it requires specialized or basic training;
  • Lay off record within the past six months prior to the submission of the FORM ETA 9089;
  • Salary offered.

How to Determine Whether an owner has the Financial Ability for a Petition

All employment-based petitions require that the petitioner can pay the prevailing wage salary and maintain such ability until the foreign national receives permanent resident status.

The employer will be considered to have the ability to pay the prevailing wage if any one of the following situations is met:

The owner will be considered to have the ability to pay if any one of the situations is met:
  • By demonstrating that the petitioner’s net current assets were equal to or greater than the offered salary in all years under consideration (net current assets are the difference between current assets and current liabilities).

Though financial files are not required during the submission, the USCIS requires financial documents from the data of the submission of the FORM ETA 9089 and through the adjudication of the FORM I-140. In some cases, USCIS may further check the employer’s ability to pay during the adjudication of the FORM I-485 adjustment status even after the FORM I-140 has been approved.

Immigration attorney Houston, TX

Adan Vega is a board certified immigration attorney in Houston TX and represents clients worldwide and offers consultations with an experienced board certified immigration attorney, either by telephone, ZOOM, or at our Houston law office. To schedule an appointment to talk privately with one of our Houston immigration attorneys, call (713) 527-9606 or contact us online.