PERM Labor Certification

PERM Labor Certification

Our firm has successfully represented clients in PERM Labor Certification cases, view our PERM Labor Certification Success Stories.

There are 3 steps to obtaining a Green Card through Employer Sponsorship:

Labor Certification through the PERM process.

I-140 Immigrant Petition for Alien Worker.

I-485 Application to Register Permanent Residence.

PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment.

To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.

A brief summary of PERM:

PERM Application Process

Prevailing Wage to be determined by United States Department of Labor prior to application filing

Pre-Application recruitment will be required for all applications during the period 30 days to 180 days prior to filing

PERM Applications are to be filed directly with DOL

Applications may be filed either electronically or by mail using Form ETA-9089 – Employers must attest to having met all PERM requirements for the proposed job opportunity

DOL website for completing and submitting the PERM application form

Employers do not submit supporting documentation with the PERM application but must retain supporting documentation for 5 years for audit purposes

PERM Decisions

The DOL Certifying Officer (CO) may approve, deny, require an audit; following an audit, the Certifying Officer may order supervised recruitment (to be administered by the CO instead of the SWA)

No criteria in the regulation for ordering an audit or for ordering supervised recruitment – some applications will be randomly selected for audit

Employers will have 30 days to respond to an “Audit Letter;” Certifying Officers may grant a single 30 day extension “for good cause.”

Failure to respond to an Audit Letter will result in denial of the application, and may result in a finding of fraud or misrepresentation

If the CO determines there was fraud or misrepresentation on an application, the CO may penalize the employer by ordering supervised recruitment for all applications filed by the offending employer for 2 years

The CO may revoke a prior approval at any time after providing notice of intent to revoke – employers will have 30 days to submit a rebuttal; the CO will issue a decision within 30 days of receipt of the employer’s rebuttal evidence

Post-decision Options for Employers

Employers may file a request for reconsideration within 30 days of a denial

Employers may file a request for review by BALCA within 30 days of a denial

No new information may be submitted in support of the application

Prevailing Wage Determinations

Must obtain formal Prevailing Wage Determination (PWD)

Employers must pay 100% of the prevailing wage for the position (95% rule eliminated)

4-tier system for prevailing wages

Employers may submit alternative wage surveys for consideration if conducted within the 24 months prior to the application – weighted averages preferred, but median wage may be used if average wage not available

Prevailing Wage Determinations may be valid for 90 days to 1 year from the date of the determination

Employers may file supplemental information for consideration following a prevailing wage determination

Employers may appeal a PWD to the DOL Certifying Officer; the CO may affirm, modify or remand; Employers may appeal a CO’s decision to BALCA

Job Requirements

Job requirements must represent the employer’s actual minimum requirements and if they exceed the normal minimum requirements they must bear a reasonable relationship to the occupation and must be essential to perform the job in a reasonable manner (i.e., based on business necessity)

A foreign language requirement must be accompanied by a justification based on business necessity

Employer must not have hired workers with less training or experience for substantially comparable jobs

Beneficiaries may use experience gained while working for the employer if such experience was gained in a position not substantially comparable to the position for which certification is sought (Delitizer requirements are now part of the regulation)

A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time

Employers may be required to provide position descriptions, percentage of time spent on the various duties, organization charts, and payroll records in order to document that they have not hired workers with less training or experience for substantially comparable jobs

Pre-filing Recruitment Requirements for Professional Positions

State Job Order placed for at least 30 days

Two (2) Sunday print ads must be placed in a newspaper of general circulation in the geographic area of the proposed place of employment between 30 days and 180 days prior to application filing

the employer’s name must appear in the ad

the ad must apprise applicants of the job opportunity

a descriptive job title, name of the employer, and the means to contact the employer may be sufficient

job site identification required

additional information permitted provided the same requirements also appear on the Form ETA 9089

Employers may substitute one national journal ad for one Sunday newspaper ad where the position requires experience and/or an advanced degree Three additional recruitment steps required – employers may submit documentation of any 3 of the following types of recruitment activities:

  • job fairs
  • employer’s website ads
  • Job search website
  • On-campus recruiting
  • Trade or professional organizations
  • Private employment firms
  • Employee referral program with incentives
  • Campus placement offices
  • Local and ethnic newspapers
  • Radio and television ads

Pre-filing recruitment requirements do not apply to applications for Schedule A occupations, special handling for college or university teachers, and sheepherders

Report of recruitment results must contain:

description of recruitment steps undertaken and results achieved

# of hires

# of U.S. workers rejected, categorized by the lawful job related reasons for rejection

“A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training”

Supervised recruitment requirements

CO may order supervised recruitment for any application, whenever appropriate

One ad must be placed in a newspaper of general circulation for 3 consecutive days, one of which must be a Sunday

The CO may require as an alternative an ad placed in a professional, trade, or ethnic publication

Employer must supply a draft ad to the CO for review and approval within 30 days of being notified that supervised recruitment is required – the ad must include the wage offered (a wage range is permissible provided that the lower end of the range is at least as high as the prevailing wage for the position

Extremely detailed recruitment report will be required.

Impact of Layoffs

If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.

A layoff is defined as any involuntary separation of one or more workers with cause of prejudice; it includes personnel actions characterized by an employer as reductions-in-force, restructuring, or downsizing.

A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

The employer must be responsible for the attorney’s fee related to the PERM portion of the case and the PERM advertising expenses. Either the foreign national or the employer may pay the fees/costs for filings with the Immigration Service following approval of the PERM case.