PERM Lawyers
The Permanent Labor Certification Process: "PERM"
I. INTRODUCTION
Congress has mandated that employers employing certain foreign nationals obtain a labor certification from the Department of Labor before they may hire them to work on a permanent basis or before proceeding to sponsor them as an immigrant worker. A labor certification is granted when an employer has shown "that there are insufficient qualified U.S. workers available and willing to perform the work at the prevailing wage paid for the occupation." The intent of the Labor Certification and PERM process is to ensure that admitting foreign workers does not adversely affect job opportunities, wages, and working conditions for Americans.
II. WHAT IS PERM?
The PERM process, the acronym for "Program Electronic Review Management," is a series of steps that an employer must follow to prove that no US citizen worker is available to fill the position and that wages will not be driven down by hiring foreign workers for less compensation than what would be demanded by a U.S. citizen. Whether the process accomplishes this goal or not is a matter of debate. What is important to note is that foreign nationals who wish to obtain a green card through their employer under the EB-2 or EB-3 category must comply with the extensive PERM regulations. These steps include a recruitment campaign whereby the employer advertises the opening of the position to persons in the area of employment. The process also involves establishing with the state and the federal government that the employer will pay the prevailing wage for the location in that particular occupational field to the foreign national.
Once these steps are completed, the labor certification application may be filed with the US Department of Labor. Occasionally, the department of labor will audit the labor certification application to inquire if all of the PERM steps had been followed. Once the labor certification application has been approved by the Department of Labor, the employer is given a limited amount of time to file the Form I-140, and thereby for the alien's Green Card with the United States Citizenship and Immigration Service.
III. REQUIREMENTS OF THE EMPLOYER IN THE PERM PROCESS
The employer must make certain attestations and make certain information available when submitting a labor certification application. The employer must be willing to pay the foreign national the prevailing wage for the area. The employer must put forth a good-faith recruitment campaign that does not tailor the position requirements such that only the intended foreign national could possibly qualify for the opening. The position offered must be full time, and the job duties must be normal to the occupation. The attorneys of The Law Firm of Shihab & Associates are available to guide employers through the complicated PERM process.
1. Information that must be provided for the PERM Labor Certification Application
The labor certification application consists of information on the employer, information on the foreign national, and information on the employment position that the foreign national hopes to fill.
Most importantly, the employer may need to provide proof that the PERM process has been accurately complied with. This means that meticulous records must be kept of every step that the employer takes in the recruitment campaign. The employer will also need to provide biographical information of the company itself and its ability to actually pay the foreign worker the prevailing wage.
The foreign national will need to provide detailed information on his or her education and previous work experience. The foreign national may also need to provide letters from previous employers detailing the dates that the person worked for that company, the person's exact job title, and the duties performed.
Finally, the PERM Labor Certification must include details about the job itself. A position description and job duties must be clearly laid out. The working conditions and requirements must be thoroughly documented. Additionally, the compensation provided, including benefits, must be disclosed.
The Attorneys of The Law Firm of Shihab & Associates Co., LPA realize that the Labor Certification process may require employers to furnish proof that they have complied with the rigorous regulatory PERM directives and actively represent their clients making certain that compliance is maintained. Our years of experience have given us the forethought and insight to accomplish these goals while protecting clients' privacy.
2. The PERM Recruitment Process
In order for the employer to show that there are no US Citizen workers available, willing, and qualified to perform the work, the Employer must undertake a series of recruitment efforts. The recruitment requirements are divided between mandatory and optional depending on the classification of the position as "professional" or not. All positions require mandatory recruitment steps.
A) Mandatory recruitment efforts include:
- Opening a 30 Day job order with the state workforce office
- Posting a notice of intent to employ a foreign worker internally or with the Union covering the position
- Placing 2 Sunday newspaper advertisements with the newspaper of general circulation for the area of intended employment
These recruitment efforts must be completed thirty (30) days prior to filing the labor certification application. Additionally, the 30 Day job order must have been begun (60) days before filing the labor certification application
B) Additional Recruitment
If the position is considered to be a professional position under the Department Of Labor (DOL) regulations, then three (3) of the following ten (10) recruitment efforts must be undertaken:
- Job fairs
- Employer's Web site
- Job search Web site other than the employer's
- 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 advertisements
Two of the three additional recruitment steps must have been completed thirty days (30 days) prior to filing the labor certification application with the DOL.
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