What is PERM?
An employer who sponsors a foreign citizen’s employment based immigration petition for permanent residency (a green card) needs to obtain an approved labor certification. The process to obtain a labor certification is known as PERM (the Program Electronic Review Management System). An approved labor certification shows that no qualified U.S. workers are available and willing to accept the position at the prevailing wage, and that hiring an immigrant for the job will not negatively impact the working conditions or salaries of U.S. workers in similar jobs. Additionally, labor certifications will only be approved for full-time permanent jobs.
The Department of Labor started the PERM process on March 28, 2005 to replace the old system of processing labor certifications. PERM was designed to speed up the labor certification process. An employer can now sometimes obtain a labor certification in a few months, but the process can still take well over a year. Under PERM, an employer files a labor certification application, but does not need to file supporting documentation. However, the employer should keep a file of all supporting documentation for five years in case the Department of Labor decides to audit the application. If the Department of Labor decides to conduct an audit, the process will take approximately six to nine months longer.
PERM Procedure Requirements
An employer who wants to sponsor an employee’s employment based immigration petition needs to go through the PERM process to obtain a labor certification. In addition to the steps below, the employer has to confirm with the Department of Labor that the salary offered is at least the prevailing wage for the position.
A labor certification application requires that an employer advertise the job in a local newspaper of general circulation. The ad must be posted in the newspaper on two consecutive Sundays, excluding holidays that fall on a Sunday. This job posting must include the employer’s name, a job description, where the job is located, and an address for resume submissions. The job description should be detailed enough for other potential qualified applicants to understand the job requirements, but not so detailed that the foreign national is the only person who can possibly qualify for the job.
In addition to the newspaper posting, the employer must notify the local State Workforce Agency, and post the job advertisement with them. This job advertisement must be posted for at least thirty days.
If the job is a professional position, the employer may post one of the required newspaper advertisements in an appropriate professional journal. In addition, the employer must advertise the position in at least three of the following ways: a job fair; the employer’s own website; a job-search website; on-campus recruiting; college or university career placement offices; trade or professional organizations; employment agencies; an employee referral program that provides clear incentives; local and ethic newspapers if they are appropriate for the position; and radio and television advertisements. A job is considered professional if it requires a bachelor’s degree or higher, or its equivalent.
The employer also needs to post a Notice of Job Opportunity for at least ten consecutive business days at the job location. The job notice should include the salary, and should be posted in the normal place for similar notices, such as a notice board or internal website, so all employees know of the job availability.
After posting all of the job availability notices, the employer must wait at least thirty days for any potential candidates to apply for the position. If any qualified applicants do apply for the job, the employer has to interview them. Qualified applicants can only be rejected for job-related reasons, not because they are not the immigrant intended for the position.
Filing the Labor Certification Application
After the employer completes all these steps, the employer can send the labor certification application to the Department of Labor. The employer should send the application no later than 180 days after the job advertisement was first posted. Applications can either be filed online or mailed to processing centers in Atlanta and Chicago. The day an application is filed is called the priority date.
Although the Department of Labor does not require any documentation other than the application, it does have the right to conduct an audit. Employers should keep records of the entire process in case of an audit. Examples of records include copies of all job postings, business letters of necessity for unusual job requirements, and recruitment reports that include all resumes received and explain an employer’s reasons for rejecting qualified candidates.
If the Department of Labor decides to audit a labor certification application, it may ask the employer to submit documentation that it advertised the position appropriately, and that no qualified U.S. workers were willing and available. The Department of Labor may also ask for proof that the employer is a real company, that it is able to pay the prevailing wage as of the date it submitted the labor certification application, or that the immigrant is actually qualified for the job. The employer has thirty days to submit any documents the Department of Labor requests.
University professors and teachers can go through a Special Handling process. This enables a professor or teacher to file a labor certification application that shows he or she is the most qualified person available for the job. A specially handled application has to be filed within eighteen months of the job offer.
Approved Labor Certifications
The Department of Labor has denied applications for very minor reasons, such as slight errors and failing to include small details, so it is important to fill out the application correctly. Once the Department of Labor approves the labor certification application, the employer can then file an I-140 immigrant petition with U.S. Citizenship and Immigration Services (USCIS). The approved labor certification, proof of the employer’s ability to pay the prevailing wage, and proof that the employee is qualified for the job should be submitted along with the immigrant petition.
An employer can also file a Schedule A application with USCIS as part of an I-140 petition. Filing a Schedule A implies that there is a shortage of qualified and willing U.S. workers for the job. Schedule A particularly helps nurses and physical therapists, who can show their qualification for the position by having a permanent license to practice in a particular state, having a Certificate from the Commission on Graduates of Foreign Nursing Schools, or having passed the National Council Licensure Examination for Registered Nurses.
After USCIS approves the immigrant petition, the employee can finally apply for permanent residency (a green card) either by applying for an adjustment of status, or going to the U.S. consulate if the person is not yet in the U.S. Due to a backlog of petitions, it may take years before the employee is eligible for permanent status by adjusting his or her status or obtaining an immigrant visa. During this time an employee in the U.S. will have to maintain his or her non-immigrant legal status.