PERM Labor Certification
The mechanism by which the U.S. immigration system protects permanent American workers’ jobs is called PERM labor certification. Labor certification is a statement from USDOL that a particular position at a particular company is “open” because no qualified American workers are available.
Labor certification is the first step in the standard “green card” process to obtain permanent resident status based on a job in the United States. Permanent Resident applicants, other than “Priority Workers” (EB-1) and “National Interest Waiver” (EB-2) workers, must show that their employer recruited for the position without identifying qualified and available American workers. This test of the labor market through recruitment is called “labor certification” and involves filing the PERM application on Form ETA 9089, which is then reviewed by USDOL.
PERM (Program Electronic Review Management) is an electronic process for filing labor certification applications for permanent employment-based immigration. Under the PERM system, the labor certification filings are almost entirely filed electronically and directly with the U.S. Department of Labor (USDOL), operating out of a single processing center in Atlanta.
Under PERM, employers are expected to gather and maintain recruitment documents supporting the labor certification application. However, rather than reviewing the recruitment documents with each application, USDOL simply retains the right to audit employers to demand them.
Generally, employers are required to pay all expenses of the PERM application, including attorneys’ fees and costs of recruitment. No reimbursement is permitted. There are narrow exceptions, such as the attorney review of an employee’s application when the attorney does not also represent the employer responsible for filing the PERM, but these exceptions should not be relied upon.
Required company registration
Employers must directly register with USDOL using the company’s actual legal name. No agent or attorney may do this on the employer’s behalf. After registration, USDOL will send registration information to the employer by email, including user ID, password, and PIN. USDOL may also send an email, especially to smaller and newer companies, requesting incorporation-related documents. This is to verify the existence of the company. The registered contact person should be an individual who can respond to USDOL inquiries, who will retain USDOL login information, and who has the authority to communicate with USDOL. It is also advisable that the registration information be kept at a location available to other HR personnel, in case the registered contact person leaves the company.
Creating attorney subaccounts
Once registered, a subaccount can be created in the name of the attorney handling the case. To create a subaccount, the employer should log into the PERM account and, on the home page, click the tab on the far right that says User Accounts. Next, click the button that says Activate User Account. Finally, click the button that says Add New User. A box to enter the attorney’s information should then appear. In the box for login information, a name for the user account must also be provided. USDOL should then send the attorney an email with the login information.
PERM requires that employers obtain prevailing wage determinations from USDOL in advance of the filing. Moreover, an employer must pay the sponsored employee at least 100% of the prevailing wage for the position and demonstrate “ability to pay” the required wage from the date of PERM filing. For small companies, it is important to pay the prevailing wage from the date of PERM filing in order to satisfy “ability to pay.” Employers should discuss with counsel whether they can demonstrate their ability to pay the prevailing wage before proceeding with a PERM filing. Finally, the labor certification application must be filed within the validity period of the prevailing wage determination.
Job order requirement
Another requirement under PERM is placing a 30-day job order with the state workforce agency. Each state has different procedures for placing job orders.
For all applications, the job availability notice including salary has to be posted at the worksite for 10 consecutive business days.
For all applications, except those filed under the “special handling” rules discussed below, two Sunday advertisements must be placed in newspapers covering the area of intended employment.
In addition, for a professional occupation, the employer must undertake at least three additional means of recruitment out of a list of 10 acceptable forms of recruitment, including:
job search website (other than the employer’s);
private recruitment firm;
employee referral program;
campus placement office;
radio or TV advertisements.
Conduct of recruitment
Period of recruitment – All of the required recruitment must be completed within the 180 days preceding the filing date. However, only one form of additional recruitment can take place fewer than 30 days before the filing date.
Content of the advertisement – The advertisement text must conform to the PERM rules.
Disqualifying candidates – The employer is not allowed to disqualify a U.S. worker who can reasonably be trained to perform the duties of the position.
Layoffs – If the employer has had any layoffs in the sponsored employee’s occupation or a related occupation within the six months prior to filing, the employer must document that it has contacted and considered all laid-off employees.
The employer must retain recruitment materials and results, including résumés of applicants sorted by the reasons they are not qualified, for five years. USDOL generally requests copies of résumés if a case is audited. Consequently, the employer must retain the résumés of each applicant, together with copies of correspondence, properly sorted, on file with the audit documentation.
College and university teachers only need to show that they were selected pursuant to a competitive recruitment and selection process within 18 months of the filing date. This process only needs to include one advertisement placed in a national professional journal. The employer must also prepare a statement outlining the recruitment procedures and include a final report from the selection committee.
USDOL has declined to publish audit criteria. Under PERM, USDOL retains the right to audit based on triggering factors derived from its decision logic matrix. USDOL may also conduct random audits. Below are some factors that may trigger audits:
Positions with educational requirements below a bachelor’s degree;
PERM applications filed by some public schools;
Positions requiring a bachelor’s degree and no experience;
Cases submitted after a denial or withdrawal following an audit;
Cases in which employers had a layoff;
Positions requiring a foreign language;
Employers with 10 or fewer employees;
Employers with any family relationship between its employees and the sponsored foreign national;
An employer accepts an alternative combination of education and experience;
An employer accepts experience in an alternative occupation;
Job requirements exceed those determined by USDOL to be “normal” for the occupation;
Jobs involving a combination of occupations.
After the PERM application is filed, USDOL will email the employer’s registered contact person to verify the job opening as a part of its anti-fraud efforts. Failure to reply within seven days will result in a phone call to the employer. Failure to immediately return the phone call will result in a denial of the application. The four questions USDOL will ask are:
Are you aware that an Application for Permanent Employment Certification was filed on your behalf?
Are you, or do you work for, the employer referenced in the application?
Do you have an opening for [name of position] in [city and state]?
Are you sponsoring [employee’s name] for this position?
The appropriate response to each of these questions is “yes.”
The employer’s registered contact person is advised to regularly check his/her email and voicemail after a PERM filing to prompt immediate response. The employer is also advised to take steps to ensure that the USDOL email is not blocked by its spam-blocker. If the contact person is away for any period of time, other members of the employer’s staff should check email and voicemail during the absence.