PERM can be one of the most confusing and frustrating portions of the employment-based Green Card process for employers. PERM is driven by numerous regulatory requirements and the slightest mistake can doom a Green Card sponsorship. As Part One of Burr and Forman, LLP’s Summer Green Card Series, we look at the PERM process so employers can understand what to expect and how to successfully prepare applications.
What is PERM?
PERM stands for Program Electronic Review Management and is the web-based program operated by the Department of Labor (“DOL”) for obtaining Labor Certification. Labor Certification is the first of three steps in almost all employment-based Green Card Petitions. The PERM process is most easily understood as a testing of the U.S. labor market to ensure a foreign national being sponsored for an employment-based Green Card is not filling a job that could otherwise be filled by a qualified U.S. worker. There are wage and recruitment components to PERM, both of which are discussed below. An employer’s ultimate goal in the PERM Process is to have the application certified so they can move forward with filing an Immigrant Visa Petition with the United States Citizenship & Immigration Services (USCIS) and ultimately obtain a green card.
The Prevailing Wage
One of the major requirements for obtaining Labor Certification is that the sponsoring employer demonstrate the employee filling the position will be paid at least the “prevailing wage”. Employers obtain the prevailing wage by submitting a request (Form ETA 9141) electronically with the DOL. The prevailing wage request filing is free and requires information such as the position’s duties as well as education and experience requirements.
The DOL is often slow issuing prevailing wage determinations (currently averaging approximately 120 days) and there is no expedite option. Sometimes, it is recommended the prevailing wage be obtained before moving forward with the recruitment aspect of the PERM process to avoid spending money on advertisements only to learn the prevailing wage is higher than the client is willing to pay. Prevailing wages expire each year on June 30th, although they have a guaranteed validity period of at least 90 days.
Employers seeking to obtain PERM approval must also demonstrate they have tested the labor market and no qualified U.S. workers exist to fill the position. The labor market test requires the employer to advertise for the position in various sources during the 180 day period leading up to the PERM Application filing.
For professional positions, an adequate test of the labor market typically requires the employer to advertise for the position by placing two Sunday newspaper ads in a newspaper of general circulation in the geographic area of employment. Employers are also required to perform three additional recruitment steps from a list provided by DOL. The PERM regulations have very specific requirements about advertising contents; therefore, legal counsel should be consulted when drafting advertisements for PERM. Employers must also place a thirty-day job order with the State Workforce Agency and ultimately post the position where the company posts other wage and hour information.
After recruitment is complete, employers must wait at least thirty days before filing a PERM Application. It is important for employers to begin the recruitment steps early to ensure they can complete the recruitment, evaluate any applicants, and file the PERM Application within the 180 day period.
In order to file a PERM Application, a sponsoring employer must demonstrate that no minimally qualified U.S. workers applied for the position. In other words, if a U.S. worker applies for the position and meets the position’s minimum requirements, the PERM Application cannot be filed and the foreign national cannot be sponsored for a Green Card at that time.
Employers should collect resumes from all applicants and follow up with applicants to confirm whether they meet the minimum requirements. Any resumes or application materials received should be kept for a five year period. If no minimally qualified U.S. worker applies, the employer can file a PERM Application.
PERM Application Filing and Timing
PERM Applications (Form ETA 9089) are submitted through a DOL-based website. There are no filing fees for PERM Applications. Each application is subject to potential audit, however, which can cause delays. If audited, employers may be required to provide documentation of recruitment results.
The PERM maze often confuses even the most sophisticated employers. Strategy sessions with competent immigration counsel can help navigate the complexities of the PERM process and set up a Green Card for success, particularly because the Green Card petition should always be consistent with the PERM Application.