PERM: Labor Certification

PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment for all the employment based permanent residency categories except EB-1 and NIW. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.

PERM Application Process

  1. Prevailing Wage to be determined by State Workforce Agencies prior to application filing;
  2. Pre-Application recruitment will be required for all applications during the period 30 days to 180 days prior to filing;
  3. PERM Applications are to be filed directly with DOL;
  4. Applications may be filed either electronically or by mail using Form ETA-9089 – Employers must attest to having met all PERM requirements for the proposed job opportunity;
  5. DOL website for completing and submitting the PERM application form;
  6. Employers do not submit supporting documentation with the PERM application but must retain supporting documentation for 5 years for audit purposes.

Employer’s Responsibilities

It is important to note that the employer must assume certain responsibilities and costs in embarking on the labor certification process. First, the employer is attesting that it has the intention to hire on a permanent basis the foreign doctor at the prevailing wage, as defined in the DOL’s regulations. Generally, the prevailing wage is the average wage earned by workers in the same occupation in the area of intended employment. As the prevailing wage varies from region to region, the employer is required to obtain a prevailing wage determination from the State Workforce Agency (SWA) as part of the pre-filing process.

Second, the employer is required to assume the costs associated with the labor certification process. These costs include expenses for the required advertisements as well as the attorneys’ fees incurred for legal services associated with the filing of the PERM application.

PERM Recruitment Requirements

Under PERM, the employer is required to undergo and document certain recruitment steps. The regulations require employers to perform the following steps within 6 months prior to filing the labor certification application under PERM:

  1. Print Ads: The employer is required to place an ad on 2 different Sundays in a newspaper of general circulation in the area of intended employment. These ads must include sufficient information to apprise U.S. workers of the job opportunity. To achieve this, the regulations specify what information must be included in these ads.
  2. Placement of a Job Order with the SWA: The employer must place a job order with the SWA serving the area of intended employment for a period of 30 days.
  3. Notice of Filing: If the employer has entered into a collective bargaining agreement with a union representing employees in the occupation for which the labor certification is filed, the employer must provide notification to the union representative of the job opportunity. If the employer is not unionized, the notice must be posted for 10 consecutive business days at the employer’s facility at a conspicuous place between 30 and 180 days before the filing of the PERM application. The regulations list the information that must be included in this notice. Moreover, the employer must post this notice in “any and all in-house media” if such media is normally utilized to by the company to recruit individuals for similar positions.
  4. Additional Recruitment Steps: In addition to the above mandatory steps, the employer must select three more recruitment steps.
    • Employer’s Web Site
    • Job Search Web Sites (other than the employer’s web site)
    • Career/Job Fairs
    • On-Campus Recruitment
    • College Campus Placement Offices
    • Trade or Professional Organizations/Publications
    • Private Employment Firms
    • Employee Referral Programs with Incentives
    • Local and Ethnic Newspapers
    • Radio and Television Advertisements

Although the employer does not submit supporting documentation with the PERM application, the employer must ensure that documentation confirming the recruitment efforts and notice posting is retained. The employer must also ensure that all resumes received are reviewed promptly, and that appropriate action is taken within a reasonable amount of time. The employer must document the legitimate business reasons explaining why each applicant was rejected.