If a U.S. employer wishes to sponsor a foreign worker for a green card, the employer must complete the labor certification process, also known as PERM. The PERM process requires the sponsoring employer to go through numerous steps before the Department of Labor will certify the PERM application.
At its core, the objective of the PERM process is to prove to DOL that the foreign worker will not displace any U.S. workers, and this is shown by a test of the labor market. The ultimate goal of the PERM process is to establish that there are no “able, willing, qualified, and available” U.S. workers to fill the offered position.
To demonstrate that no “able, willing, qualified, and available” US workers can fill the offered position, the sponsoring employer must conduct good faith recruitment. DOL has put into place mandatory recruitment steps that must be undertaken to show good faith recruitment: the job order and two Sunday newspaper advertisements. These two recruitment efforts must be done whether the position is for a professional or nonprofessional occupation.
The sponsoring employer must post a job order with the state workforce agency where the job will be performed. Each state workforce agency has its own requirements that must be fulfilled for a proper job order. DOL requires the job order to run for 30 consecutive calendar days. Weekends and holidays are included in the 30-day count. If a job order was to run for less than 30 days, the result would be a denial of the PERM application. As this time frame is very important, it is recommended that the job order run for more than 30 days whenever possible to be absolutely certain the time frame has been met.
The sponsoring employer must also run two Sunday newspaper ads. These ads must run on two different Sundays in the newspaper of general circulation in the area of intended employment. The ads must contain the name of the employer, instructions on how and where resumes/applications are to be sent, a description of the job that is specific enough to apprise applications of the offered position, and an indication of the geographic location of the job and any travel requirements.
DOL requires sponsoring employers undertake one more mandatory step – the Notice of Filing, also referred to as the posting notice. The Notice of Filing is not meant to advertise the position; instead, the purpose of the Notice of Filing is to alert other employees already working with the company that a labor certification application will be filed. The Notice of Filing must be placed at the employer’s place of business for ten consecutive business days. The Notice of Filing must contain the job title, job duties, requirements, and an attestation that the notice was posted for ten days. Instructions on how to report any violations to the DOL are also included on the Notice of Filing.
If the offered position is for what is considered a professional occupation, the employer is required to perform three additional recruitment steps. It is best to discuss these additional requirement steps with a qualified attorney in order to determine which methods would be considered best when faced with a particular set of facts.
As the job order, Sunday newspaper advertisements, and the Notice of Filing are required by DOL when submitting a PERM application, any mistake, no matter how small, on these required efforts could result in the denial of the application. In order to avoid a denial and the possibility of having to start the lengthy, and potentially expensive, PERM process a second time, consulting with an experienced attorney is highly recommended.
By: Jessica Palarca
Jessica Palarca is an attorney in Reddy & Neumann’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.