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In most instances, a foreign national seeking to obtain U.S. permanent residence through employment in the second and third preference must be the beneficiary of an approved application for alien employment certification. This application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are able and available to accept the offered position at the prevailing wage for the geographic area. On December 27, 2004, the U.S. Department of Labor (DOL) published the final regulation for the Program Electronic Review Management (PERM) system to streamline the labor certification application. The new procedure took effect on March 28, 2005.
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PERM application process
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The PERM application process can be briefly summarized as follows: the employer obtains a prevailing wage determination from a State Workforce Agency; the employer then completes the necessary recruitment steps during the 180 days prior to filing the application; the employer files the application; DOL will either certify, deny, or issue an audit letter on the application; the employer and alien sign the certified application; the employer maintains supporting documentation for the labor certification for a period of five years.
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Prevailing wage determination
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The employer is required to obtain a prevailing wage determination from its State Workforce Agency who will make the prevailing wage determination based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located. The employer is required to offer at least 100% of the prevailing wage rate for the position being certified. Prevailing wage determinations are valid for at least 90 days, and for not more than 365 days, after they are issued.
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| Job Requirements |
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The advertised requirements for the position must meet two criteria. First, the skills, education and/or experience must be the actual skills, education and/or experience required to satisfactorily perform the duties of the position. The employer cannot require that applicants possess certain skills or experience simply because the beneficiary of the PERM application possesses those skills or experience. Second, the beneficiary of the PERM application must have possessed the skills, education and/or experience being required prior to joining the employer. The employer, however, can require experience or skills obtained on the job if the employer can show that the position in which the skills and experience were acquired is sufficiently different from the position being applied for in the PERM application. A position is “sufficiently different” if the job duties are at least 50 percent different. PERM defines the "same" employer as having the same Federal Employer Identification Number.
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The U.S. Department of Labor has established guidelines for different occupational categories and these guidelines determine the amount of education and experience that can be required for a given occupation. Requirements that exceed the range established by the U.S. Department of Labor are considered “unduly restrictive,” meaning that the sole function of these requirements is to reject U.S. workers who are otherwise qualified for the position. An employer, however, may require experience and education in excess of the range established by the U.S. Department of Labor by showing “business necessity,” which means that the requirements must bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer.
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Recruitment Requirement
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The recruitment required under PERM depends on whether the occupation in the job offer is “nonprofessional” or “professional” occupation. Generally, a "professional" occupation is one in which completion of at least a Bachelor's degree is normally required for entry into the field. The following three recruitments steps are required for all PERM cases and must take place at least 30, but no more than 180, days before filing the application with DOL:
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- Newspaper advertisements: Employers must run advertisements on two different Sundays in the "classifieds" section of a newspaper of general circulation in the area of intended employment. If a professional journal is normally used to recruit for the occupation, the employer may place an advertisement in a professional or trade journal of national circulation, in lieu of one of the two newspaper ads.
- Job Order: The employer must place a 30 day job order with the State Workforce Agency serving the area of intended employment.
- Notice of filing an application for labor certification: The employer must provide notice to its employees that it is filing a labor certification application for the job opportunity. If the occupation is unionized, the notice must be provided to the bargaining representative. If there is no bargaining representative, the employer is required to post a printed, internal job notice at the employer's worksite in a conspicuous location for at least ten consecutive business days. In addition to physical posting, the employer must distribute the notice through "any and all in-house media" normally used by the employer to recruit for similar positions.
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Additional recruitment requirements apply to employers seeking to hire someone in a professional occupation. The employer must undertake three recruitment steps in addition to the steps outlined above. The following venues are permissible for additional recruitment for professional positions:
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- Job fairs;
- Employer's Web site;
- Job search web site other than the employer's;
- On-campus recruiting;
- Trade or professional organizations/publications;
- Private employment firms that conduct recruitment;
- Employee referral program with incentives;
- Campus placement offices;
- Advertisement in local and ethnic newspapers;
- Radio and television advertisements.
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Preparing recruitment results
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After the advertisements and job orders are placed, the employer will receive resumes from interested applicants. The employer must review those resumes to determine if there are any qualified and available U.S. workers who are willing to accept employment at the prevailing wage. Upon completion of this resume review and evaluation, and before submitting the labor certification application, the employer must prepare a recruitment report for its internal files.
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PERM does not require employers to provide individual recruitment results for each and every applicant to the job. However, PERM does require employers to prepare a summary recruitment report that documents the recruitment steps undertaken. It must include the number of individuals hired and if applicable, the number of U.S. workers rejected, summarizing the lawful job-related reasons for their rejections. If certain job-related skills could be learned during a "reasonable" period of on-the-job training, candidates lacking those skills must be considered qualified for the job opportunity.
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Filing and Audit
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The Labor Certification Application, Form ETA 9089, can be submitted electronically. The initial review and intake of the PERM application will be completed by an automated system at Department of Labor (DOL). If the application passes certain validation checks and all parts of the application are complete, most cases will then be certified. DOL intends to process PERM applications filed electronically within 45-60 days.
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If an application is selected for an audit, the employer will receive an audit letter from the Certifying Officer (CO) asking the employer to provide certain documentation and specifying a reply date of thirty days from the date of the audit letter. If the reply date is not met or if the CO does not provide the employer with an extension, then the application will be denied. An audit can be triggered randomly or based on information provided in the employer’s PERM application.
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