THE “PERM” LABOR CERTIFICATION APPLICATION
The Program Electronic Review Management (PERM) program is the electronic attestation process by the Department of Labor (DOL) under which all labor certification applications must be filed. “PERM” is the first of three steps to lawful permanent resident (“green card”) status. Upon receipt of an approved labor certification from the DOL, the employer then can file the I-140, Immigrant Visa Petition with the USCIS, and the I-485, Application To Adjust Status to Permanent Resident (if the priority date is current).
- What is the purpose of the PERM process?
The purpose of the PERM application is to “test the U.S. labor market” to demonstrate to the U.S. Department of Labor (DOL) that there are no qualified and available U.S. workers for the position being offered to the foreign national.
- What is required for PERM recruitment?
- How must an employer conduct its recruitment?
Recruitment is normally based on the location of the job. Recruitment for ALL positions (both professional and non-professional) requires:
- 30-day job order with the relevant State Workforce Agency (SWA); and
- Two Sunday newspaper advertisements in the paper of general circulation. There is an exception for rural areas for which a Sunday publication is unavailable. One Sunday ad can be replaced by a professional journal for positions requiring an advanced degree with experience, in a printed format.
For professional positions (those for which a bachelor’s or higher degree is a customary requirement), employers must use engage in three additional forms of recruitment selected from the following list:
- Employer’s web site.
- Other job search website (which may include the website of the newspaper where the print ad is run).
- On campus recruitment (where employer sets up interviews on campus).
- Trade / professional organization journal, that may be electronic in nature.
- Private employment firm.
- Employee referral program where employer provides incentives.
- Campus placement office so long as postings are made available to alumni.
- Local / ethnic papers.
- Radio / TV ads.
- Job fairs.
For non-professional positions (those that do not require a bachelor’s degree), employers are not required to conduct the three additional forms of recruitment.
- Is there a notice requirement?
PERM also requires that the employer provide notice (“Notice of Filing”) during the same recruitment period. The notice is distinct from recruitment because its purpose is to give employees an opportunity to provide documentary evidence bearing on the application to the DOL Certifying Officer. The Notice of Filing requires:
- If there is a bargaining representative for the occupational classification in the area of intended employment, that person must receive notice in the form of a letter and copy of the application form (ETA 9089); or
- If there is no such bargaining representative, a notice must be posted for 10 consecutive business days in a conspicuous location and be clearly visible to employees; and,
- The employer must also publish a copy of the notice in all in-house media, whether electronic or printed, where the employer would normally place notices of its job openings for similar positions.
5. Is there a wage requirement?
Yes. An employer must pay the “prevailing wage” to the employee once the green card is approved as determined by the Department of Labor.
- Is there a compliance requirement for the employer?
The employer must maintain an Audit File for 5 years upon certification of the Form ETA 9089. It consists of documentary evidence of the recruitment efforts to include proof of each form of recruitment conducted and a “recruitment report” which details whether there were any applicants, and if so and disqualified, the lawful, job-related reasons for rejection.
- What is asked by the PERM form, Form ETA 9089?
The PERM Form (ETA 9089) has several parts. One section asks for a record of the prevailing wage determination issued by the Department of Labor. The employer must also indicate the duties of the position and all requirements to include the required experience and education for the position, all “special requirements” (required skill set), and any travel requirements. The last sections of the Form ETA 9089 ask for information related to the foreign national employee reflecting his/her qualifications for the position.
- How do you file a PERM application and how long does it take?
The application form, ETA 9089, is usually filed through a DOL on-line Internet portal (filing by mail is permitted, but not recommended). The current processing time for a PERM application is approximately 8-9 months if the application is not selected for audit and about 12 additional months or more if the application is selected for audit. These are estimated processing times.
- What is an Audit?
An audit is an information request by the DOL asking for proof of recruitment efforts found within the Audit File, and any specifically identified issues. The DOL will audit PERM applications in 3 situations: (1) randomly to ensure the integrity of the program, (2) based on pre-selected criteria on Form 9089, and (3) through a review process by DOL officers. The DOL may choose to audit applications and request additional information for a variety of possible reasons:
- If the foreign national’s qualifying work experience or education was gained while employed by the sponsoring employer;
- If the foreign national has a familial or financial connection to the employer;
- If the employer paid for education or training;
- If the employer has made layoffs in a related occupation within the past 180 days defined as an involuntary separation of one or more workers without cause or prejudice;
- If there have been significant layoffs in the industry that is the subject of the PERM application;
- If the requirements for the position exceed what DOL considers the “normal” requirements for the position; or
- If specific other issues arise.
- Will I be audited?
Currently, DOL reports an audit rate of about 25-30%. The employer should prepare documentation relating to these issues prior to filing the application and must maintain that documentation for 5 years in the form of the Audit File.