The Program Electronic Review Management (PERM) labor certification process is the first step in the employment based green card process. The PERM to green card path always begins with the Department of Labor (DOL). It is at this step in the process that the DOL will expect an employer to test the labor market for qualified U.S. workers before filing a labor certification on ETA Form 9089 for a foreign worker. Essentially, the DOL wants the employer to certify that it will not displace U.S. workers by hiring a foreign one for a permanent position. In order for an employer to certify that there are notable, willing, qualified, and available U.S. workers for the permanent position, the employer must comply with multiple pre-filing rules. These rules are what make obtaining a green card for a foreign national employee a complicated effort. Not only are the DOL requirements strict and time sensitive, but they are intended to keep the best interest of the U.S. worker in mind. Thus, if initial efforts are not conducted properly, the entire process can be compromised and will surely be noticed by the DOL. By keeping this in mind, it is easy to understand why pre-filing efforts are so important. Always remember, compliance is the building block for the entire process.
Complying with PERM rules and regulations requires the U.S. employer, foreign national and counsel to work together. We have provided a general overview of the pre-filing process for your knowledge:
1. Review of Qualifications: An attorney will coordinate with your employer to review your qualifications in order to determine whether you are suited for the existing position your employer is sponsoring you for.
2. Job Description: Once it is determined that you are qualified for the position, your employer will send an attorney a draft advertisement for the position, which includes all requirements for the job opportunity. The attorney will verify that the job requirements are the minimum requirements for that position. This step can take up to 20 days to complete depending on your employer.
3. Prevailing Wage Determination (PWD): Once the advertisement has been approved by your employer, our firm will submit a wage application to the National Prevailing Wage and Helpdesk Center. The PWD is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. It will take approximately 2 months for the Prevailing Wage Center to issue its determination.
4. Receipt of PWD: Once we receive the PWD, your employer will have to approve the given wage. Subsequently, our firm will coordinate with your employer to begin advertising for the position.
5. Advertising: PERM regulations impose strict requirements regarding the length of time advertisements must be posted. Therefore, generally, the earliest your case can be filed once we receive the PWD is 60 days (MINIMUM). Note: It is the employer’s decision as to when adverting will begin.
a. Mandatory Recruitment for All Occupations (professional and nonprofessional): All PERM applications, whether professional or nonprofessional, require the following recruitment efforts:
i. 30 day job order with the SWA serving the area of intended employment;
ii. Two Sunday print advertisements in the newspaper of general circulation; and
iii. Notice of Filing to be posted for a period of 10 business days.
b. Additional Recruitment for Professional Occupations: In addition to the mandatory recruitment requirements for all PERM applications, employers must select 3 additional recruitment methods from the list provided by the DOL:
i. Job Fairs;
ii. Employer’s website;
iii. Job search website;
iv. On-campus recruiting;
v. Trade or professional organizations; Private employment firms;
vi. Employee referral programs;
vii. Campus placement officers;
viii. Local or ethnic newspapers; and
ix. Radio or television advertisements.
c. 30 day quiet period: After completing all required recruitment efforts, there is a mandatory 30 day “quiet” period immediately following the last day of each recruitment effort. The employer cannot file ETA Form 9089 until this quiet period is over. The end of the quiet period determines the “maturity” date for the advertisements.
6. Advertising/Recruitment: Once advertisements have been posted, your Employer will be required to conduct recruiting depending on whether or not seemingly qualified U.S. workers have applied for the position you are being sponsored for. This recruiting process must continue up until filing the labor certification, ETA Form 9089, on your behalf.
7. Finalizing ETA Form 9089: Once advertising/recruitment requirements have been fulfilled, it will be time to finalize the labor certification application. This will include making sure we have all appropriate documentation from your end and finalizing all the information you have provided to us on the draft ETA Form 9089.
8. Attorney Review: Once your application has been finalized with our firm, your entire case will be further reviewed by an attorney. The attorney may have further questions for you at this time.
Because of time limitations and strict requirements set by the Department of Labor, unfortunately, this is not an overnight process. Therefore, one should be prepared for a waiting period of 4-5 months minimum before we can file the case with the Department of Labor.
Please note, this estimated time period is calculated from the time we submit the PWD application on behalf of an employer. This time period primarily applies to cases where an employer will not commence the recruitment process until the PWD is received. If an employer has opted to commence the recruitment process prior to receiving the PWD, the filing time will decrease.
Once ETA Form 9089 is filed with the DOL, it is currently taking approximately 7 months to adjudicate. (If a case is audited, this time frame increases). Once a labor certification is approved, the next step would be to file an I-140 Immigrant Petition for Alien Worker and eventually an I-485, Application to Register Permanent Residence or Adjust Status. We fully understand that this wait can be tedious, but we will work with you every step of the way to help provide you with the best possible outcome.
Reddy & Neumann, P.C. is a boutique business immigration law firm based in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the nation in their efforts to bring foreign workers and business professionals to the United States. The attorneys of Reddy & Neumann, P.C. are highly experienced in guiding employers and employees through the PERM Labor Certification process by advising clients on the PERM advertising requirements, Prevailing Wage issues, and priority date establishment. From filing the PERM Form 9089 through certification, and onto the I-140 petition and adjustment process we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.