Every year, U.S. employers rely on foreign talent to add unique skill sets to their existing workforces. While some arrangements are temporary, others result in employment-based green card applications.
These petitions involve government agencies: the Department of Labor (DOL), the United States Citizenship and Immigration Services (USCIS) and sometimes the Department of State (DOS). Simply put, an employer must obtain an approved DOL Labor Certification through the PERM process before filing an immigrant visa petition with USCIS on behalf of a foreign national. Once such a petition is approved, a foreign national may adjust his status to permanent resident in the United States or apply for an immigrant visa at a U.S. embassy or consulate.
The first step of this process, obtaining PERM labor certification, can be complex and time-consuming, as employers must comply with multiple regulations and requirements. In this blog, the team at the Immigration Law Office of Los Angeles, PC goes over the steps of the PERM process and outlines how an experienced immigration lawyer can help you grow your team.
What is PERM Labor Certification?
PERM stands for Program Electronic Review Management, an electronic system used by the U.S. Department of Labor to manage the labor certification process. Its purpose is to ensure that no qualified U.S. workers are available for a job opportunity before the employer sponsors a foreign worker for permanent residency to fill that position.
Employers must first conduct a recruitment process to advertise the job opening to U.S. workers and document their efforts to find qualified candidates. If no suitable U.S. applicants are found, the employer may file a PERM application with the DOL.
PERM processing time varies. To help you better understand how long you may have to wait for results, let’s take a look at what goes into the process.
Step 1: Define the Position
It is the employer’s responsibility to define the duties and minimum requirements for the position. A detailed explanation of the necessary experience, education, and skills should be included.
Step 2: File a Prevailing Wage Request
The employer must file a prevailing wage request with the DOL to determine what the employee should be paid based on the location of the job, its duties and requirements. Processing time vary over time, but, as of February, 2023, were running about 8 months.
Step 3: Do Extensive Recruiting
Once the employer receives this wage information, they need to undergo an extensive recruiting process that includes running an ad in 2 Sunday newspapers, a state job bank, and at the place of employment, and, for professional positions, also requires three other forms of recruitment, such as advertising at job fairs, the employer’s web site, job search websites, college campuses, trade or professional organizations and through the use of private employment firms and/or employee referral program with incentives
After all the recruitment efforts are undertaken, the employer must generally wait another 30 days for people to respond. Any U.S. applicants for the position must be interviewed if they are even possibly qualified to fill it.. When there isn’t any qualified domestic labor to fill a job position, employers can proceed to sponsor foreign talent for U.S. permanent residency.
It should be noted that the Department of Labor may require directly supervised recruitment measures in some circumstances. This process aims to ensure that the company uses adequate recruitment methods to find and hire qualified U.S. workers first, and could involve even more recruitment efforts than described above.
Step 4: Give Notice
Employers must give advance notice of their intent to submit PERM applications. The notice should be given to the union representative of any current employees filling similar roles or, if there is no such representative, to the workers themselves, through a notice at the employer’s place of business.
Step 5: File Form ETA-9089
To apply for PERM, the employer must file the ETA-9089 form. Online PERM submissions that don’t end up being audited by the Department of Labor take the shortest amount of time to process, with the average decision time in this scenario being six months. If the employer gets audited, either randomly or because there was an issue with the application, it can take a lot longer.
While an employer can’t prevent a random audit, certain red flags may trigger a targeted one. They include:
- The applicant is a relative of the employer or owns stock in the company
- The position does not require a minimum of a Bachelor’s Degree
- The position requires a degree but no work experience
- The applicant does not seem qualified for the position
- The employer has recently laid workers off
If any of these conditions apply to your PERM application, speak to your immigration lawyer about the best way to cope with any challenges.
Potential audits aside, the DOL reviews the application to ensure that the employer has followed all the necessary procedures and that there is a bona fide job opportunity available to U.S. workers. If the application is approved, the employer can file a petition with USCIS to qualify a foreign worker for an immigrant visa or to adjust his status to permanent resident in the United States. This must be done within 180 days of receiving PERM approval or else the certification will expire and the employer will need to go through the filing process again.
Is The Perm Process the Same as an LCA?*
Since both the Labor Condition Application (LCA) and PERM are associated with the Department of Labor, they are often confused. However, they are completely different.
The Labor Condition Application is a form that U.S. employers must file with the DOL before hiring foreign workers under certain nonimmigrant (temporary) visa categories, specifically the H-1B, H-1B1, and E-3 visa programs. The purpose of the LCA is to ensure that the employment of those foreign worker will not have an adverse effect on U.S. workers. PERM, on the other hand, is q requirement for the approval of certain employment-based green cards, and not a temporary visa.
Is PERM Necessary for All Employment-Based Green Cards?
The PERM process is not required for all U.S. employment-based green cards. EB-1s do not require PERM labor certification. It is also possible to obtain permanent residence without PERM approval through the EB-2 National Interest Waiver (NIW). Petitions in any of these categories have highly specific requirements that do not include proving the unavailability of qualified U.S. workers.
Speak to a Los Angeles Immigration Attorney About Growing Your Workforce
The PERM labor certification process involves several critical steps that include regulatory compliance and interactions with federal agencies such as USCIS, the DOL, and U.S. consulates worldwide. You stand the best chance of success when you work with a California immigration lawyer who understands and has worked with these agencies before.
At the Immigration Law Office of Los Angeles, PC, we regularly assist employers by preparing and filing PERM labor certification applications and immigrant petitions. We can also assist if the DOL requires supervised recruitment or audits you. To schedule a consultation, please call (213) 375-4084 or contact us online.