PERM is the process for obtaining labor certification, which the first step of the green card process for most foreign nationals seeking permanent residence through their employment.
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.
Question: How long does the labor certification process take:
Answer: Right now, the labor certification process is taking about 2 months, but processing times change. The recruitment process, which is completed prior to the labor certification being submitted, takes approximately three months
Question: Does the submission of a labor certification keep me in lawful status in the U.S.?
Answer: No. A labor certification is a petition on the part of an employer and does not enable a foreign national to maintain status in the U.S.
Question: Does the foreign national have to be working for the employer in order be eligible to file a labor certification:
Answer: No. The employer has to intend to hire the foreign national when the residency application is approved. Most aliens, however, do work for the employer who sponsors them, but the law does not require this.
Question: Does every foreign national who want a green card through employment have to go through the labor certification process?
Answer: No. Most people do have to go through the labor certification process, but there are some categories of foreign nationals who are exempt. These include multi-national executives and managers, people with extraordinary ability in the arts, science or business, certain nurses and physical therapists and people who can prove that it is in the national interest to waive the labor certification requirements.
General Labor Certification Requirements:
The employer must be prepared to hire the foreign worker on a full-time and permanent basis.
There must be a bona fide job opening available to U.S. workers.
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
Form of Application
The U.S. employer requests a permanent labor certification by completing an Application for Permanent Employment Certification (“ETA Form 9089″).
This application describes the job duties, educational requirements, training, experience, and other special capabilities that the alien must possess to do the work, and a statement of the prospective alien’s qualifications.
Applications that are submitted by mail must contain the original signature of the employer, alien, and preparer (if applicable) when they are received by the processing center.
Applications filed electronically must, upon receipt of the permanent labor certification issued by ETA, be signed immediately by the employer, alien, and preparer (if applicable) in order to be valid.
Prevailing Wage Requirements:
Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the U.S. Department of Labor. The prevailing wage application is submitted electronically and the DOL’s response time is approximately 30 days. Once the DOL provides the prevailing wage, the employer can begin the recruitment process.
Question: How does my employer prove that it has the ability to pay the prevailing wage?
Answer: There are several ways of proving the ability to pay the prevailing wage.
a) Tax returns: The employer can show that it can pay from its net income or by its net current assets (current assets minus current liabilities)
b) Audited financial statements: The employer can show that it can pay from the net income or the net current assets
c) W-2s or 1099s: If the employer has been employing the foreign national, it can prove ability to pay by showing that it has already paid the employee
d) Annual Reports: The employer can show the ability to pay from its annual reports.
e) Letter from CFO or other authorized person from the company: This applies only to companies that employ more than 100 workers.
Question: I know that my employer can pay me but they can’t show it. Should I go forward with the labor certification process?
Answer: We do not recommend starting a labor certification process without proof of ability to pay on the part of the employer.
Question: My employer says that they don’t show their tax returns or financial statements to anyone. Should I go forward with the labor certification process?
Answer: The employer will be required to show to the government some evidence of ability to pay the prevailing wage, unless the employee can show W-2s or 1099s equal or greater than the amount of the prevailing wage. Therefore, we do not recommend going forward with a labor certification process without the employer agreeing to submit financial information at the outset of the process.
Pre-Filing Recruitment Requirements:
All U.S. employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A pre-certified occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
The employer must recruit under the standards for professional occupations set forth in 20 CFR §656.17(e)(1) if the occupation involved is on the list of occupations (published in Appendix A to the preamble of the final PERM regulation) for which a bachelor’s or higher degree is a customary requirement.
The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the Certifying Officer prior to rendering a final determination.
Mandatory Recruitment Steps:
The requirement of a job order and the requirement of two print advertisements in the newspaper of general circulation, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process (described below).
Question: Nobody reads the print advertisements in the classified sections of newspapers anymore. Can’t I do online advertisements?
Answer: No. PERM regulations require 2 print advertisements, so they must be in the printed version of the newspapers.
Question: My employer has been recruiting for the position already. Can we use the ads already published for a labor certification?
Answer: Unless the ads comply with the PERM regulations, they cannot be used for a labor certification.
The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application.
The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days.
The start and end dates of the job order entered on the application will serve as documentation of this step.
Advertisements in Newspaper or Professional Journals
The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.
If the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment.
Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.
The advertisements must satisfy the specific requirements contained in the regulations, which are described below.
If the job involved in the application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Documentation of this step can be satisfied by providing a copy of the page in which the advertisement appeared.
Additional Recruitment Steps
The employer must also select three additional recruitment steps from the alternatives listed below:
Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
Employer’s website. The use of the employer’s website as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
Job search website other than the employer’s. The use of a job search Web site other than the employer’s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements mentioned above can serve as documentation of the use of a website other than the employer’s.
On-campus recruiting. The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.
Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
Private employment firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
Employee referral program with incentives. The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
Campus placement offices. The use of a campus placement office can be documented by providing a copy of the employer’s notice of the job opportunity provided to the campus placement office.
Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.
Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer’s text of the employer’s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application.
If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.
The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.
The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.
If the job opportunity is located in a rural area of intended employment that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. The advertisements must satisfy the requirements contained in the regulations, which are described below.
Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:
Name the employer;
Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;
Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
Not contain a wage rate lower than the prevailing wage rate;
Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.
The U.S. employer must prepare a recruitment report signed by the employer or the employer’s representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.
A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers.
The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
Job Duties, Restrictive Requirements, and Business Necessity:
General Rule for Job Duties
The job opportunity’s requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation (“SVP”) level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.
Foreign Language Requirements:
A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:
The nature of the occupation, e.g., translator; or
The need to communicate with a large majority of the employer’s customers, contractors, or employees who can not communicate effectively in English, as documented by:
The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
A detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.
If the job opportunity involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity.
Combination occupations can be documented by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity.
Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought and if the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.
Actual Minimum Requirements:
DOL will evaluate the employer’s actual minimum requirements in accordance with the following rules:
The job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.
The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.
If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer’s actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee.
The employer cannot require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless:
1) The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or
2) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
For purposes of the above provision, the term “employer” means an entity with the same Federal Employer Identification Number.
A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
In evaluating whether the alien beneficiary satisfies the employer’s actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer’s expense unless the employer offers similar training to domestic worker applicants.
Conditions of Employment:
Working conditions must be normal to the occupation in the area and industry.
Live-in requirements are acceptable for household domestic service workers only if the employer can demonstrate the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer and there are not cost-effective alternatives to a live-in household requirement.
If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.
A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.
For the purposes of the above provision, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.
Alien Influence and Control over Job Opportunity:
If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, (i.e. the job is available to all U.S. workers), and must provide to the Certifying Officer, the following supporting documentation:
1) A copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity;
2) A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business’ structure, and a description of the relationships to each other and to the alien beneficiary;
3) The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary;
4) The name of the business’ official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) of the business’ official(s) having control or influence over hiring decisions involving the position for which labor certification is sought; and
5) If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.
Audits/Requests for Information:
Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
Retention of Records:
The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.
Refiling of a Prior Labor Certification Application Under PERM
If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” by the Certifying Officer and returned to the employer or agent who submitted the application.
The employer or agent then files the beneficiary’s employment-based I-140 petition with USCIS and includes the certified ETA Form 9089 with the petition.
Appeal of Denials:
A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals (“BALCA”).
BALCA may affirm the labor certification denial, direct the CO to approve the labor certification or remand the case to the CO for reconsideration in a manner consistent with its instructions