What is a PERM Labor Certification Application?
Most individuals seeking lawful permanent residence (a “green card”) in the United States through employment must first be the beneficiary of their employer’s or prospective employer’s Labor Certification Application to the U.S. Department of Labor (DOL). Today, the DOL utilizes an electronic attestation-based Labor Certification system called the Program Electronic Review Management System (PERM).
A PERM Labor Certification Application is submitted by one’s employer or prospective employer for the purpose of attesting that the employer has been unable to recruit an able, willing and qualified U.S. worker (U.S. Citizen or Lawful Permanent Resident) in the position, skill level and geographic area for which the employer is seeking permanent resident status on a foreign employee’s behalf. To establish that a U.S. worker is not available, the employer must follow a highly specific set of government-regulated recruitment efforts. These recruitment efforts must clearly indicate the education, experience, training and other requirements for the position and the prospective foreign worker who is the beneficiary of the PERM Application must be able to demonstrate that he or she has all of the stated requirements for the position for the PERM Application to be successful.
State Workforce Agency (SWA) Prevailing Wage Determination
To evidence that the hiring of a foreign worker through a PERM Labor Certification Application will not have an adverse affect on the wages and working conditions of U.S. workers, an employer who wishes to submit a PERM Labor Certification must first get a prevailing wage determination from the state workforce agency (SWA) having jurisdiction over the area in which the foreign worker will be employed. A foreign worker who is the beneficiary of the PERM application must be paid at least the rate of pay determined by the SWA to be the prevailing wage for the prospective position, at the appropriate skill level and in the geographical area in which the foreign worker will be employed. A prevailing wage determination is valid for no less than 90 days and no longer than one year and must be valid at the time the PERM application is submitted OR when the employer begins PERM recruitment.
PERM Labor Certification Recruitment Process
A PERM Labor Certification is filed electronically on Form ETA 9089 and all recruitment steps must have taken place before filing the PERM Application. Although it is permissible to begin the recruitment process before receiving the SWA prevailing wage determination, it is not usually advisable because any recruitment documentation indicating a prevailing wage below the one provided by the SWA will be unusable.
For professional positions, PERM Labor Certification compliant recruitment consists of:
1. A job order placed with the State Workforce Agency Job Databank for at least 30 days.
2. Two print advertisements placed on two different Sundays in a “newspaper of general circulation” in the area of intended employment. For professional positions, a professional journal advertisement may replace one of the two Sunday newspaper ads if the job requires experience and an advanced degree.
3. An employer is required to provide notice to the bargaining representative, where applicable, of the employer’s employees. If there is no bargaining representative, an employer is required to publish a notice for ten consecutive days in a conspicuous location where employees can easily see the notice (such as an employee break room, etc.) and in all printed and electronic in-house media that the employer normally uses for in-house recruitment.
4. Three of the following ten additional recruitment steps:
a. Job fairs
b. Employer’s website
c. Job search website other than the employer’s
d. On-campus recruitment
e. Trade or professional organizations
f. Private employment firms
g. Employee referral programs with incentives
h. Campus placement offices
i. Local and ethnic newspapers.
j. Radio and television advertisements.
Please note that not all of these ten additional recruitment steps are appropriate for each position and employers seeking to submit a PERM Labor Certification Application on behalf of a prospective foreign employee should discuss this issue with their immigration lawyer.
For non-professional positions, steps 1, 2 and 3 above apply, but employers are not required to select three of the additional ten recruitment efforts.
Timing of PERM Recruitment
All recruitment efforts (with one exception) must take place at least 30 days, and no more than 180 days prior to the PERM Labor Certification Application being electronically submitted. The only exception being that in cases of professional occupations, one of the three additional steps may take place in the 30 days prior to submitting the application. An approved PERM Labor Certification is only valid for six months from the date of certification, in which a Form I-140, Immigrant Petition for Alien Worker must be submitted.
“Good Faith” Recruitment is Required
Educational, employment and other requirements cannot be used in connection with PERM recruitment if they are not normal for the occupation unless they are justified by a legitimate business necessity. A job that is the basis of a PERM Labor Certification may not be “tailored” to the prospective foreign workers qualifications in order to exclude otherwise qualified U.S. workers. Any job requirement that is not ordinarily required for an occupation will likely be deemed by the Department of Labor to be unduly restrictive, unless the employer can demonstrate such a requirement is a business necessity. Foreign language requirements are commonly considered to be unduly restrictive, except where an employer can demonstrate that the nature of the job duties make requiring a foreign language a practical necessity.
Also, an employer could not have hired workers for the position with less education, training or experience for substantially similar positions. Experience the foreign worker has gained while employed with the employer submitting the PERM Labor Certification Application cannot generally be used as qualifying experience for the position, as required in the PERM recruitment, unless the foreign worker gained such experience with the employer in a position that is not substantially comparable to the position that is the subject of the PERM Application.
