PERM Labor Certification: What Employers and Foreign Workers Should Know

For many employers who want to sponsor a foreign worker for permanent residence in the United States, the first major step is the permanent labor certification process, commonly known as PERM. PERM is used in many employer-sponsored EB-2 and EB-3 green card cases and is handled by the U.S. Department of Labor ("DOL").

PERM is not itself a green card application, and approval of a PERM labor certification does not give the foreign worker permanent residence or immigration status. Instead, the process is designed to test the U.S. labor market before the employer proceeds to the immigrant petition stage. Because the employer is responsible for the job requirements, recruitment, review of U.S. applicants, and filing, employers considering sponsorship should understand these obligations before beginning the process.

What Does PERM Labor Certification Do?

Under the Immigration and Nationality Act, DOL generally may certify a permanent job opportunity only after determining that there are not sufficient U.S. workers who are able, willing, qualified, and available for the position and that employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The PERM regulations therefore require more than simply showing that an employer prefers to keep a particular foreign worker. The job opportunity must be for permanent, full-time employment, must be clearly open to U.S. workers, and must meet the requirements established by DOL.

The foreign worker does not necessarily need to be working for the sponsoring employer when the PERM application is filed. PERM is generally based on a bona fide offer of future permanent employment. Depending on the employer's plans and the worker's circumstances, the worker may currently hold H-1B or another status, work for a different employer, or be outside the United States.

Not every employment-based green card case requires PERM. For example, certain occupations are handled under separate Schedule A procedures, and some individuals who may qualify for an EB-2 National Interest Waiver (NIW) may request that the job-offer and labor-certification requirements be waived. For most employer-sponsored EB-2 and EB-3 cases, however, PERM is an important part of the process.

Defining the Job and Obtaining the Prevailing Wage

Before recruitment begins, the employer should carefully define the permanent job opportunity, including the position's duties, work location, educational and experience requirements, and other minimum qualifications.

These requirements cannot simply be designed around the sponsored worker's résumé. Generally, the requirements must reflect the employer's actual minimum requirements for the position and must be normal for the occupation unless a more demanding requirement can be properly justified under the regulations. If the foreign worker already works for the employer, additional rules may apply when determining whether experience gained with that employer can be used to satisfy the stated requirements.

The employer also obtains a prevailing wage determination from DOL. The prevailing wage is intended to protect the wages and working conditions of U.S. workers employed in comparable positions. The employer must offer at least the applicable prevailing wage and must attest that the wage ultimately paid to the foreign worker will meet the applicable regulatory requirements.

A prevailing wage determination has a specific validity period. Under the regulations, that period cannot be less than 90 days or more than one year. To use the determination, the employer must either begin the required recruitment or file the PERM application within the validity period stated by DOL.

For employers, decisions made at this stage can affect the entire case. Changes to the job location, duties, minimum requirements, or other material parts of the position after recruitment begins may require the employer to reconsider whether the existing recruitment can still support the application.

Recruiting for U.S. Workers

PERM recruitment is a genuine labor-market test. It should not be treated as advertising performed only to complete paperwork for a foreign worker who has already been selected for permanent sponsorship.

For a professional occupation, the basic PERM process generally requires a 30-day job order with the State Workforce Agency serving the area of intended employment and two advertisements placed on different Sundays in an appropriate newspaper of general circulation. The regulations also require three additional recruitment steps selected from specified options. Depending on the circumstances, these may include the employer's website, another job-search website, a job fair, a professional organization, an employee-referral program with incentives, or other permitted methods.

The timing rules are important. The job order and required advertisements generally must be conducted at least 30 days, but no more than 180 days, before the PERM application is filed. The additional recruitment steps are also subject to regulatory timing requirements.

The employer must separately provide notice that a permanent labor certification application is being filed. If there is no applicable bargaining representative, the notice generally must be posted at the place of employment for at least 10 consecutive business days and must comply with the other notice requirements in the regulation.

After recruitment, the employer - not the sponsored worker - must consider the U.S. applicants. A U.S. worker may be rejected only for a lawful, job-related reason. The regulations also provide that a U.S. worker may be considered qualified if the worker can acquire the skills needed to perform the job during a reasonable period of on-the-job training.

The employer must prepare a recruitment report describing the recruitment conducted, the results, the number of hires, and, where applicable, the lawful job-related reasons U.S. applicants were rejected. Depending on the results of recruitment, an employer may need to evaluate carefully whether it can proceed with the PERM filing.

The sponsored foreign worker may not interview or consider U.S. workers for the sponsored position. The worker's agent or attorney also may not do so unless that person qualifies as the employer's representative under the regulation.

Filing the PERM Application

After the required recruitment has been completed and the employer determines that the case can proceed, the employer files Form ETA-9089, Application for Permanent Employment Certification, with DOL.

The employer makes a number of attestations in the application concerning the job opportunity, wage, recruitment, availability of the position to U.S. workers, and other aspects of the case. PERM therefore involves more than submitting a form based on information supplied by the foreign worker. The employer is responsible for the accuracy of the application and for compliance with the applicable recruitment and documentation requirements.

Supporting documents generally are not submitted with the ETA-9089 when the application is filed. The employer must, however, retain the application and supporting documentation for five years from the filing date. If DOL selects the application for audit, the employer must provide the requested supporting documentation. An application may be certified, denied, or selected for audit, depending on the circumstances.

Employers should also understand the rules concerning PERM expenses. An employer may not require the foreign worker to pay or reimburse the employer for activities related to obtaining the permanent labor certification, including the employer's attorney fees. A foreign worker may pay for separate legal representation of the worker, subject to the regulations, but if the same attorney represents both the employer and the foreign worker in the PERM process, those legal costs must be borne by the employer.

What Happens After PERM Is Approved?

PERM certification is an important milestone, but it is not the end of the employment-based green card process.

The filing date of an approved PERM application generally becomes the foreign worker's priority date. The employer normally proceeds by filing Form I-140, Immigrant Petition for Alien Workers, with U.S. Citizenship and Immigration Services ("USCIS").

An approved PERM labor certification generally must be filed in support of Form I-140 within 180 calendar days after DOL grants the certification. If the certification is not used within that period, it expires.

The basic sequence for many employer-sponsored cases is therefore PERM labor certification, followed by Form I-140, Immigrant Petition for Alien Workers, and then adjustment of status or immigrant visa processing when an immigrant visa is available.

The later stages depend on the applicable employment-based category, the worker's priority date, visa availability, and the worker's individual circumstances. Approval of PERM does not guarantee approval of the I-140 or permanent residence.

As discussed in our article on Permanent Residence (Green Card) and Ending H-1B Employment, employers seeking to retain H-1B workers on a longer-term basis may want to consider permanent-residence planning well before the worker approaches the normal H-1B time limits. The appropriate timing will depend on the particular employee, immigration history, employer, job opportunity, and other circumstances.

Planning a PERM Case

PERM is an employer-driven process with several connected stages. Decisions about the job requirements and prevailing wage affect recruitment; recruitment results affect whether the employer may proceed; and the certified application becomes part of the later I-140 process.

For that reason, employers considering permanent sponsorship may benefit from reviewing the proposed position and immigration strategy before recruitment begins. Foreign workers may also want to understand the process, expected stages, and how PERM fits into their broader permanent-residence planning.

Lau Immigration Law assists employers and foreign workers with employment-based immigration matters. If you are considering PERM sponsorship or have questions about how the labor-certification process may apply to a particular position or employee, we recommend that you consult with legal counsel regarding the specific facts and circumstances.

Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.

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