There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition, and (3) Adjustment of Status. The PERM labor certification process is usually the biggest obstacle to overcome because the process is lengthy, involves multiple stages, and requires careful strategizing to avoid mistakes along the way. Reddy & Neumann provides answers to the following PERM related frequently asked questions to help individuals better understand this complicated process.

What is PERM?

PERM is a U.S. Department of Labor (DOL) Program, which stands for Program Electronic Review Management. It was implemented in March 2005 to streamline the labor certification process.

PERM regulations require a sponsoring employer to test the U.S. labor market through various recruitment methods for “able, willing, qualified, and available” U.S. workers. If no such U.S. worker is found through good faith recruitment, an employer can file a PERM labor certification application on ETA Form 9089 on behalf of the beneficiary.

Who is considered to be a U.S. worker?

A U.S. worker is defined as a U.S. citizen, permanent resident, refugee, or asylee.

Who needs a PERM Labor Certification?

Generally, a PERM labor certification is required if an employer is filing an EB-2 or EB-3 immigrant petition on behalf of a beneficiary.

Does an approved PERM Labor Certification give a beneficiary the right to work in the U.S.?

No, an approved PERM application does not give an individual the legal right to work in the U.S. It will however allow an employer to file an EB-2 or EB-3 I-140 immigrant petition on the beneficiary’s behalf. The majority of individuals will therefore work pursuant to a temporary work visa, such as an H-1B, while the green card is in process.

What does the PERM application process require the employer to document?

The PERM process requires the employer to document its recruitment methods and results, report relevant details regarding the company, the offered position, and the foreign national, and make certain attestations about the position, wages, and recruitment conducted.

How long does it take to file a PERM Labor Certification application? 

It is currently taking approximately 7 months to file a PERM application (assuming able, willing, qualified, and available U.S. workers are not found for the job opportunity).

In order to file a PERM application, a Prevailing Wage Determination is required and recruitment must be complete. Currently, the DOL is taking about 5 months to issue Prevailing Wage Determinations. Once issued, the employer must undergo recruitment. The recruitment process will take at least 60 days. 

Please note that the DOL prevailing wage processing times play a significant role in how fast a PERM application can be filed. Although the minimum 60-day recruitment window cannot be changed, prevailing wage processing times can.

Can an employer expedite the PERM Labor Certification process? 

Unfortunately, the DOL does not provide a premium processing option for prevailing wage determinations or PERM applications. However, an employer may speed up the process by starting the recruitment efforts (as described below) while the Prevailing Wage Determination Request is pending. This can speed up the process by 60 days.

Please note that there are multiple issues to consider before proceeding with this option. Employers should speak with a qualified immigration attorney before doing so.

How long does it take the DOL to process a PERM application once filed? 

Currently, the DOL is taking approximately 4.5 to 7 months to adjudicate PERM applications. Processing times vary throughout the year. General processing times can be found here: FLAG

If the PERM application is selected for Audit, how much time will this add to the process?

Currently, the DOL is taking about 4 months to process audits after the audit response is submitted. Processing times vary throughout the year. General processing times can be found here: FLAG

Is there any way to predict if a PERM application will be audited by the DOL?

Please visit: Minimize Your Risk of PERM Audit

What must the PERM job opportunity requirements represent? 

The job requirements must represent the employer’s actual minimum requirements for the job opportunity. The requirements should not be based on preference. 

Example: An employer prefers a prospective employee to have a Master’s degree in Computer Science for a Software Engineer opening, but confirms that at a minimum an individual with a Bachelor’s degree in the same field would be able to perform the role. Additionally, the employer has hired other employees for the same exact position who all had Bachelor’s degrees only. In this instance, the employer’s minimum education requirement must be reflected as a Bachelor’s degree in Computer Science. 

What is a Prevailing Wage Rate? 

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The DOL issues a prevailing wage determination based on the specific position, job duties, requirements for the position, the area of intended employment, travel requirements (if any), among other things.

The prevailing wage is the rate the employer must at least offer the permanent position at. It is also the rate that must be paid to the employee once the green card is received. 

What is the mandatory recruitment for both non-professional and professional occupations? 

All PERM applications, whether for a professional or non-professional occupation, require the following recruitment efforts:

• 30 day job order with the State Workforce Agency serving the area of intended employment; 
• Two Sunday print advertisements in a newspaper of general circulation in the area of intended employment, most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers; and 
• Notice of Filing to be posted at the job site for a period of 10 consecutive business days. 

What is a job order? 

A job order is an advertisement for a job that is placed with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be placed for at least 30 days. Thereafter, there is a 30 day “quiet period” that must be accounted for prior to filing the PERM application.

What is a Notice of Filing?

A Notice of Filing (NOF) is an internal job posting that is placed conspicuously at the employer’s premises for 10 consecutive business days. Technically it is not intended to be a form of recruitment, but instead serves to put employees on notice of the employer’s job opening and the potential permanent hiring of a foreign worker. The NOF includes instructions for reporting violations to the DOL Certifying Officer. The NOF must end at least 30 days before filing the PERM application, but no more than 180 days before the application is filed.

The employer must now publish the NOF in any and all in-house media, whether electronic or printed, if it is usually used by the employer for posting such a notice for recruitment of similar positions.

What additional recruitment is required to be conducted if the PERM application is for a professional job?

In addition to the mandatory recruitment mentioned above, the DOL requires 3 additional recruitment efforts to be posted. The employer must choose 3 of the following:  

• Job Fairs
• Employer’s company website
• Job search website
• On-Campus recruiting 
• Trade or professional organization 
• Private employment firms
• Employee referral program
• Campus placement office
• Local or ethnic newspaper; and
• Radio or TV advertisement

The overall selection of recruitment efforts must demonstrate good faith recruitment by the employer. Some recruitment methods may be considered more appropriate than others depending on the requirements for the position.

Example: If a position requires 2 years of relevant experience and no education, it would not be appropriate to post the job through a campus placement office.

What is the purpose of the 30 day quiet period?

After completing all required recruitment efforts, the employer must allow potential U.S. applicants an additional 30 days to apply for the job opportunity. This is called a 30 day “quiet period” and it immediately follows the last day of each recruitment effort. 

Please note that if the position is a professional one, ONE of the three additional efforts may take place within 30 days of filing the PERM application.

How long are recruitment efforts valid for? 

Advertisements are valid for 180 days. All recruitment must be complete including the 30 day job order, the 10-day notice of filing and the 30 day “quiet period” within no more than 180 days. The clock starts on the very first day of recruitment. Therefore, it is beneficial to begin all recruitment efforts as close together as possible.

Must the job order, newspaper, and 3 additional recruitment efforts contain the prevailing wage? 

No, the DOL does not require that these recruitment efforts contain the prevailing wage. If the employer chooses to include the wage, the wage rate cannot be lower than the prevailing wage. If the beneficiary is offered more than the prevailing wage, then the higher offered wage must be used.

Please note that some job orders require the wage to be listed depending on the state the job is located in.

Must the Notice of Filing include the prevailing wage?

Yes, the NOF must include the prevailing wage. Again, if the beneficiary is offered more than the prevailing wage, the higher offered wage must be used.

Are the beneficiary’s qualifying experience letters submitted with the PERM application? 

At the time of filing the PERM application, qualifying experience letters will not be submitted to the DOL. Qualifying experience letters will however be submitted to USCIS when filing the I-140 Immigrant Petition. The experience letters must match the information you have provided on ETA Form 9089, including previous job titles and dates of employment. Further, experience letters must be in a certain format as required by USCIS. Therefore, it is a good idea to have these letters available prior to filing the PERM application so that they can be properly reviewed and verified by an attorney.

Please also see Planning Ahead to Ensure I-140 Approval

Can experience gained with the sponsoring employer be used to qualify for the offered position?

Generally, the DOL does not allow a beneficiary to use experience gained with the sponsoring employer to qualify for the offered position. However, there are certain exceptions to this rule:

1. Infeasibility to Train: The sponsoring employer must demonstrate that it is no longer able to train a U.S. worker as it did the beneficiary for the position. A detailed explanation will have to be provided by the employer. A mere statement of inefficiency or economic hardship will not suffice.
2. Substantially Different Jobs: A beneficiary may satisfy the employer’s actual minimum requirement through experience gained with the sponsoring employer if the position in which the experience was gained is not substantially comparable to the offered PERM position. A “substantially comparable” job means a job requiring performance of the same job duties more than 50 percent of the time.

Example: A Software Developer who has only worked for the sponsoring employer designs and develops software 100% of the time during a typical work day. The employer has promoted the beneficiary to an IT Project Manager role and wants to sponsor the employee for that position. An IT Project Manager spending the majority of the day (over 50%) performing managerial tasks and the remainder of the time designing and developing software should be able to use the experience gained as a Software Developer to qualify for the IT Project Manager position. These positions would not be considered “substantially comparable” because the job duties involved are more than 50% different.

3.  Qualifying Experience Gained with a Related Entity: A beneficiary can use qualifying experience gained during employment with an entity that is related to the sponsoring employer as long as the companies have different Federal Employer Identification Numbers (FEIN). 

Example: A beneficiary is working for Company A. Company B, which is a subsidiary of Company A (parent company) intends to sponsor the beneficiary for permanent employment. The beneficiary may use experience gained with Company A to qualify for the position with Company B as long as the companies are separate entities with different FEINs.

Can a beneficiary pay for any portion of the PERM process? 

No, according to PERM regulations, the employer must pay for the entire process. This includes legal fees and any advertisement costs.

Please note, the I-140 immigrant petition and I-485 adjustment of status application can be paid by either the employer or beneficiary. 

Can a beneficiary be involved in the recruitment process?

No, according to PERM regulations, a beneficiary is not allowed to be involved in any portion of the recruitment process. Doing so creates undue influence over the recruitment process.

Does a beneficiary have to be in the U.S. for an employer to file a PERM application? 

No, a beneficiary does not have to be in the U.S. for an employer to file a PERM application on their behalf.

Does a beneficiary have to currently be working for the employer who is filing the PERM application? 

No, a beneficiary does not have to be currently working for the employer who is filing the PERM application, but the employer must take into account ability to pay considerations because the beneficiary will not be on payroll.

What does ability to pay mean?

An employer sponsoring a foreign national for a PERM based green card must demonstrate its Ability to Pay (ATP) the beneficiary the prevailing wage listed on the labor certification from the time the PERM application is filed to the time the green card is issued. There are 3 ways to demonstrate ability to pay:

1. Evidence that the wage paid to the beneficiary is equal to or greater than the proffered wage (pay-stubs, W-2s);
2. Evidence that the company’s net income is equal to or greater than the proffered wage (annual report, tax return, or audited financial statement); OR
3. Evidence that the company’s net assets are equal to or greater than the proffered wage (annual report, tax return, or audited financial statement).

Example 1: The beneficiary is employed by Company A from the time the PERM application is filed and the prevailing wage is $95,000 per year. The beneficiary’s current salary is $96,000 per year. Company A can demonstrate ATP.

Example 2: The beneficiary is employed by Company A from the time the PERM application is filed. The prevailing wage is $95,000 per year and the beneficiary’s current salary is $85,000 per year. Company A has a net income of $300,000. The company can demonstrate it has the ability to pay the difference between the prevailing wage and the current salary ($300,000 net income covers the $10,000 difference). Company A can demonstrate ATP.

Example 3: The beneficiary is employed by Company A, but Company B files a PERM application on behalf of the beneficiary. The prevailing wage for the position is $95,000 per year. Because the beneficiary is currently working for Company A, Company B will have 2 options to demonstrate ATP: (1) through its net income or (2) through its net assets. Company B has a net income of $300,000. In this situation, the company can demonstrate ATP.  

Example 4: Same situation as above, but Company B has a net income of $20,000 and net assets that amount to $60,000. Also, remember that the beneficiary is not currently on payroll.  In this situation, Company B cannot demonstrate ATP.

How long is an approved PERM Labor Certification valid for?

An approved PERM Labor Certification is valid for 180 days and an I-140 immigrant petition must be filed within this period or the PERM will no longer be valid.

For more information, please contact Krystal Alanis at krystal@rnlawgroup.com or schedule a consultation at https://appointments.rnlawgroup.com

 

 

 

 

 

 

By: Krystal Alanis

Krystal Alanis is a Partner at Reddy Neumann Brown PC She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.