PERM is an acronym for “Program Electronic Review Management process” and is the latest DOL online procedure for filing a Labor Certification Application (Form ETA-9089). PERM became effective on March 28, 2005 and all Labor Certifications filed after that date must be filed using the PERM process. Traditional Labor Certification or RIR processing is NO longer available for filings after March 28, 2005.
The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the job market prior to filing the application. If no qualified and willing applicant (US citizen or Permanent Resident) is found through the recruitment process, the employer will be able to submit the PERM Labor Certification online.
Recruitment and other supporting documents are not submitted at the time of filing of the Form ETA-9089. However, the petitioning employer is required to attest that all supporting documents are ready and available prior to filing. If the Department of Labor (DOL) should audit the employer, all recruitment documents must be presented to DOL within 30 days.
An electronically filed PERM Labor Certification application may be adjudicated in approximately 45-60 days according to the Department of Labor (DOL) regulations. However, most filed PERM applications will be adjudicated in more than 45-60 days.
Who needs a PERM Labor Certification?
Generally, PERM Labor Certification is the first step in filing most employment-based petitions. With a few exceptions, immigrant petitions involving professionals with advanced degrees or exceptional abilities (EB-2), and professionals with bachelor’s degrees, skilled workers, and unskilled workers (EB-3) require a labor certification. Immigrant petitions in the following categories are NOT required to obtain a Labor Certification:
- Aliens with Extraordinary Abilities,
- Outstanding Researchers/Professors,
- Intra-Company Transferees for Multi-National Executives (EB-1)
- NIW or National Interest Waivers (EB-2)
- Investors (EB-5)
- All family-based immigrant petitions
What is the general procedure for filing a PERM Labor Certification?
The PERM process involves a thorough review of the alien beneficiary’s qualifications, the position offered and the employment setting, the strategic design and requirements of the job, the detail arrangement and follow-up of the recruitment schedules, the compliance of recruitment procedures, and the proper documentation and technical review of the Form ETA-9089.
The general procedure for filing for Labor Certification under PERM is described below:
- Employer agrees to sponsor and proceed with the PERM Labor Certification for the alien beneficiary;
- Attorney gathers information of the job position and alien beneficiary’s qualifications;
- Employer registers at the PERM Online System following attorney’s instruction and assigns the attorney a sub-account with the DOL;
- Attorney confers with the employer and alien beneficiary to obtain the job description and the requirements for the job position;
- Attorney obtains prevailing wage determination from the State Workforce Agency or other permissible sources;
- Attorney will assist arranging the recruitment schedule and providing guidance to the employer regarding internal posting and external postings;
- Attorney will provide legal guidelines and parameters on recruitment process;
- Employer screens and reviews applicants, and conducts phone or on-site interviews (if necessary);
- Employer makes decisions and determinations of each application presented for the offered job opportunity;
- Attorney will review and analyze the recruitment reports based on the recruitment information provided by the employer;
- Attorney collects all recruitment postings for documentation;
- If there is no qualified U.S. worker for the job position, the employer may proceed to submit the PERM application;
- Attorney will prepare PERM Online Form ETA-9089 after assessing and double checking all documents;
- Attorney submits Online PERM Labor Certification Application;
For successful cases, the Department of Labor (DOL) will certify (approves) the PERM Labor Certification 45-90 days from the date of filing. Some cases may be approved in a single day, and others may take up to one year.
If the DOL chooses to audit the petition, the employer must submit the required documents to the DOL within 30 days. If employer fails to submit documents within 30 days, the DOL will not only deny the specific case but may also require future applications from the same employer to go through a supervised advertisement and posting process.
After reviewing employer’s documents submitted in an audited case, the DOL may certify the labor certification petition, deny the petition, or ask the employer to go through supervised recruitment.
The PERM labor certification application is a complicated process and assistance from an experienced immigration attorney is highly recommended. At the Law Offices of Adan G. Vega & Associates, PLLC, our experienced attorneys have successfully represented many PERM Labor Certification cases.
What are the requirements for PERM Labor Certification?
The PERM Labor Certification application imposes specific requirements on the employer who must attest to the following upon the filing of the Form ETA-9089:
- The position is a bona fide full-time permanent job offer located within the U.S.;
- The job offer meets prevailing wage requirements;
- The job offer’s working conditions and environment and hiring of the alien does not adversely affect U.S. workers; and
- There is no qualified U.S. worker available to accept the job offer through the recruitment processes.
Advertising and Recruitment Requirements for PERM
With the new PERM process, the DOL changed the advertising requirements of the Labor Certification process in order to ensure every possibility is given to hire US workers over foreign workers. The employer must conduct the following mandatory recruitment activities no more than 180 days but no less than 30 days prior to the date of submitting the Form ETA-9089:
- Place an advertisement on “two different Sundays in the newspaper of general circulation”; or if the job is for one with an advanced degree, the employer may place the advertisement in a national professional journal AND in one Sunday edition of the newspaper;
- Place job order with the state job order system for at least 30 days;
- Post an internal job posting with all required information by the DOL for a period of 10 consecutive business days; or give proper notice to bargaining representative if the position is a union position.
- If the position offered is a professional position (all EB-2 cases and most EB-3 cases that require a degree), the PERM regulation requires the employer to conduct at least three (3) of the following options during the period mentioned above (except one activity may be within 30 days prior to the date of submission):
- Job fairs;
- Employer’s web site;
- Job search web site other than employer’s;
- On-campus recruiting (usually for no-experienced position);
- Trade or professional organizations;
- Private employment firms;
- An employee referral program, if it includes identifiable incentives;
- A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
- Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
- Radio and television advertisements
Though the supporting documents are not submitted at the time of online filing, the employer must keep a full set of all documentation for at least five (5) years from the date of submission and the DOL may begin an audit and investigation at any time.
The above requirements may be waived for a tenure-tracked teaching position at a university or college if the position is offered through a competitive selection.
What factors may affect a PERM Labor Certification?
The following factors may have an impact on the outcome of a PERM Labor Certification:
- Employer sponsorship – it is very important to have a cooperative relationship from and with the employer.
- Current status of the U.S. economy on a regional and local level;
- Shortage/surplus of job candidates within the local area;
- Job qualification requirements: nature of the job and whether it requires specialized or basic training.
- Employer’s layoff record within the past six months prior to the submission of the PERM application;
- Employer’s hiring practices of U.S. workers evidenced by its percentage in relation to its entire workforce;
- Salary offered.
How to Determine Whether an Employer has the Financial Ability for a PERM Petition
All employment-based immigration petitions require that the petitioner-employer is capable to pay the offered salary at the time of filing the PERM Labor Certification and maintain such ability through the immigration petition process until the alien receives permanent resident status.
The employer will be considered to have the ability to pay if any one of the following situations is met:
- By demonstrating that the petitioner paid the beneficiary a salary equal to or greater than the offered salary in all years under consideration (from filing the Form ETA-750 to the filing of the Form I-140)
- By demonstrating that the petitioner’s net income was equal to or greater than the offered salary in all years under consideration;
- 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 documents are not required during the PERM submission, the USCIS requires financial documents to prove the ability to pay from the date of the submission of the PERM and through the Form I-140 petition process. In some cases, USCIS may further check the employer’s ability to pay during the Form I-485 adjustment status process even after the Form I-140 has been approved.
CONTACT A BOARD-CERTIFIED IMMIGRATION ATTORNEY AT ADAN G. VEGA & ASSOCIATES, PLLC
We represent clients worldwide and offer consultations with an experienced Board-Certified immigration lawyer, either by telephone or at our Houston office. To schedule an appointment to talk privately with one of our experienced attorneys, call (713) 527-9606 or contact us online.