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If you wish to sponsor a foreign national for legal permanent residence (i.e., a "green card") in the United States, the most common way to do so is via the Labor Certification process. In 2005 the Department of Labor instituted a more centralized on-line procedure for Labor Certification, now commonly referred to as PERM.
PERM is the first step in a three-step process to legal permanent residence. The employer is only directly involved in the first two steps of the process. PERM is a standardized procedure by which employers are required to test the US labor market to show that there are no able, willing and minimally qualified US workers for the position in which the foreign national is being sponsored. Additionally, the employer must be attest that they will pay the prevailing wage for the position, as determined by the Department of Labor. Below are some of the most frequently asked questions about PERM.
How do we begin the PERM process?
The first and most important step in the process is a conference between the attorney and employer (and occasionally the employee) to establish the details of the job for which the employee is being sponsored. This includes job title, job duties, minimum requirements, number of employees being supervised, job location and other details.
What does "prevailing wage" mean?
Each year the Department of Labor issues new data regarding the prevailing wage for each job classification in each geographic region. Once the job details have been established, we submit a request to the state Department of Labor for a prevailing wage determination. This determination is required for the PERM process, and sets the minimum wage that the employer must be willing to pay the employee, at the time that the employee becomes a legal permanent resident.
The prevailing wage procedure is slightly different for unionized positions.
What does it mean to "test the labor market"?
The PERM process requires the employer to advertise the position. This includes two Sunday print ads in a newspaper of general circulation, an internal posting notice, a job order that is run by the state Department of Labor for 30 days, and three additional forms of recruitment. The additional forms of recruitment commonly include postings on employer and non-employer websites, print ads in local or ethnic newspapers, evidence of on-campus recruiting, or employee referral programs.
For jobs that do not usually require at least a Bachelor's degree, the three additional forms of recruitment are generally not required.
The language of these ads must meet certain criteria to be acceptable to the Department of Labor, and so do not necessarily reflect the ads an employer would normally run for recruitment.
Why do we have to run ads if the position is not really open (we already employ the foreign national)?
The Department of Labor and USCIS consider the position open because the employee is in a temporary visa status. An H-1B visa, for example, has a limit of six years. Therefore the foreign national is not considered a permanent employee.
What do I do if there are applicants for the position?
The employer is required to evaluate any applications for the position, and applicants that appear to be minimally qualified must receive a response from the employer within 14 days. You are only required to consider "US workers", which means US citizens, permanent residents, or people in valid asylee or refugee status.
Applicants that appear to meet the minimum qualifications should be interviewed by phone or in person. You will be required to show a good faith effort in contacting applicants.
If there are qualified applicants who would accept the position if offered to them, the PERM process cannot be continued at that time.
Can we make the minimum requirements so difficult that no one will meet them?
The minimum requirements of the position cannot be tailored to the qualifications of the foreign national. They must genuinely reflect the minimum requirements that you would set in recruiting for the position if you had to replace your current employee. A few other notes about minimum requirements:
1. The foreign national employee must be able to prove that he/she met those requirements at the time he/she was hired for the position. This means that you cannot require skills that the employee has learned "on the job".
2. Much of the language commonly used for recruitment, such as "must be a team player" or "Master's degree preferred" cannot be used in the PERM ads. The minimum requirements must be qualifications and skills that can be objectively proven, and must be clearly stated.
3. Requiring specialized skill or knowledge is permissible, but a long list of such special requirements will set off a red flag for the Department of Labor.
4. If there are other employees in the same position, the minimum requirements should not exceed the qualifications held by those employees.
What happens if there are no minimally qualified applicants?
If there are no minimally qualified applicants, the PERM application can be filed with the Department of Labor. The on-line application is a detailed series of attestations regarding the recruitment process, as well as details regarding the employer and foreign national employee.
The PERM application will be reviewed by a Department of Labor analyst and one of three things will happen:
1. The application will be approved.
2. The application will be audited. A small percentage of applications are chosen for audit randomly, and a larger percentage are audited based on something in the application that raised a red flag. An audit requires that we send all documentation regarding the recruitment process in for review
3. In rare cases, an application will be denied without an audit. This should only happen in cases where the recruitment requirements were not met.
What is the timeline for this process?
The initial planning process usually takes 1-2 months. During this time, the details of the position and language for all advertisements must be carefully set, and the employee will be required to gather documentary evidence that he/she meets the minimum requirements.
The recruitment stage lasts 30 days, and is followed by a 30 day "quiet period", during which any review of applicants is wrapped up and the PERM application is prepared. The PERM application may be submitted after the end of the quiet period.
Adjudication of the PERM application by the Department of Labor takes an average of 30 to 90 days. A small percentage of cases are approved much more quickly, and a small percentage of cases take longer than 90 days for approval. An audit slows this timeline down considerably.
What documentation is required?
The following documents must be gathered and saved for the PERM compliance file:
1. Copies of all tearsheets for print ads
2. Copies of internet postings
3. Evidence of any additional forms of recruitment
4. Signed & dated internal posting notice
5. Prevailing wage determination
6. Copies of all resumes received in response to the ads
7. Evidence of any contact with applicants
8. Signed & dated recruitment summary letter
What happens after the PERM application is approved?
The next step is to file an I-140 Immigrant Worker Petition with the USCIS, within 180 days of the PERM approval. This application is signed by the employer and includes two major components:
1. Evidence that the employer has the "ability to pay" the salary for the position. This evidence may include US tax returns, audited financial statements, W-2 forms, payroll records, and/or other documents.
2. Evidence that the employee meets the minimum requirements for the position. This may include copies of diplomas and transcripts, as well as letters from previous employers certifying that the employee has the required skills or knowledge.
The third step in the process is the I-485 "green card" application, filed by the employee and any dependent family members. The employer is not involved in this application, but may be asked to provide a letter confirming that the job offer still stands.
Timing at the USCIS stages is uncertain and wildly variable. Final approval of the green card application can come anywhere from eight months to three years after the PERM process was begun. Therefore it is important to begin this process as early as possible, rather than wait until the employee is nearing the end of his or her temporary visa status.
How can Curran & Berger assist me?
Our office generally coordinates every stage of the process:
1. We place all ads and gather documentary evidence of the recruitment process
2. We prepare the PERM application form and recruitment summary letter for signature.
3. We prepare the PERM compliance file
4. We file the application with the Department of Labor and track its progress For information detailing the attorney/employer relationship, please view the following article from the Department of Labor: Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule What are my responsibilities as the employer?
In order for this process to be successful, the employer must be willing to:
1. Go through a simple process of registering the company for the PERM on-line system (if not already registered)
2. Work with us to establish the job title, minimum requirements and ad language
3. Review resumes in a timely manner
4. Contact applicants who appear to be minimally qualified
5. Review and sign the application form and other documents prepared by our office
6. Respond to the email or phone call from the Department of Labor asking the employer to confirm sponsorship
Please also note that the employer must be willing to submit financial documents to the USCIS with the I-140 petition that show ability to pay the salary. The documents are not shared with the employee. |
Employment 
