The Program Electronic Review Management (PERM) process is a crucial step in employment-based immigration in the United States. It is the first stage for many employers seeking to sponsor foreign nationals for a green card under employment-based preferences such as EB2 and EB3. In this article, we provide a clear and concise guide to help employers and employees navigate this process effectively.
What Is the PERM Process?
The PERM process is managed by the U.S. Department of Labor (DOL) and is designed to ensure that hiring a foreign worker will not negatively impact the job opportunities, wages, or working conditions of U.S. workers. Before an employer can file an employment-based green card petition for a foreign worker, they must first obtain a labor certification through PERM.
The PERM process involves a detailed evaluation of the job market to confirm that no qualified U.S. workers are available to fill the job and that employing a foreign worker will not adversely affect U.S. workers’ wages or working conditions.
Steps in the PERM Process
1. Job Description and Requirements
The employer must create a detailed job description that includes the duties, minimum education, experience, and special skills required. It’s critical that these requirements are bona fide and related to the job’s necessities rather than tailored to a specific individual.
2. Prevailing Wage Determination (PWD)
The employer must request a Prevailing Wage Determination from the DOL. This determines the minimum wage the employer must offer for the position, based on the job location and requirements. Employers must ensure they’re prepared to pay at least the prevailing wage to the foreign worker.
3. Recruitment Efforts
One of the most significant parts of the PERM process is demonstrating that there are no qualified U.S. workers available for the position. The employer must undertake extensive recruitment efforts, which typically include:
- Posting the job with the state workforce agency.
- Advertising the position in at least two Sunday editions of a widely circulated newspaper.
- Utilizing additional recruitment methods, such as job fairs, online job boards, or professional organization advertisements, for professional positions.
The recruitment must be conducted in good faith, with the employer evaluating all applicants and documenting why U.S. workers were not suitable.
4. Filing the ETA Form 9089
Once recruitment efforts are completed and no qualified U.S. workers are found, the employer files the ETA Form 9089 with the DOL. This form documents the job requirements, recruitment steps, and reasons for rejecting U.S. applicants.
5. DOL Review and Decision
The DOL reviews the ETA Form 9089 and may conduct audits to verify compliance with PERM requirements. Audits can be random or triggered by certain factors in the application, such as unusually restrictive job requirements. Employers must respond promptly to any audit requests.
If the DOL approves the application, the employer receives a certified labor certification. If denied, the employer can request reconsideration or appeal the decision.
Important Considerations
Timelines
The PERM process can take several months to over a year, depending on factors like prevailing wage processing times, recruitment duration, and potential audits. Employers should plan their hiring timelines accordingly.
Compliance
Strict compliance with DOL regulations is essential to avoid denials or audits. Employers must maintain detailed records of recruitment efforts, applicant evaluations, and reasons for rejecting U.S. workers.
Why Is the PERM Process Important?
The PERM process plays a critical role in balancing the needs of U.S. employers and the domestic labor market. It allows employers to address genuine labor shortages while protecting the interests of U.S. workers. For foreign workers, it is often the first step toward securing permanent residency and building a long-term career in the U.S.
While the PERM process may seem daunting, understanding its requirements and following a structured approach can help ensure success. Both employers and employees benefit from meticulous preparation, transparent communication, and adherence to regulatory guidelines. Whether you’re navigating the process for the first time or seeking to refine your approach, staying informed is key to making the PERM process a smooth and rewarding experience.
If you are an employer or an employee who would like to know more about employment based green cards and PERM, our experienced immigration law team is here to assist. You may register for a consultation by calling 970-680-1223 or scheduling online. Our U.S. immigration attorneys are licensed to practice immigration law in all 50 states and at consulates and embassies all over the world.
**Please note this is not legal advice and engagement with this post does not create an attorney/client privilege. For specifically tailored legal advice, schedule a consultation.
Current as of December 13, 2024