Labor Certification PERM

The Program Electronic Review Management (PERM) is an attestation and audit system under which employers seeking permanent labor certification conduct advertising and recruitment prior to filing the labor certification application.

1. Employer must obtain a “labor certification” from the Department of Labor (approx. 6 months, which includes the recruitment period)
2. Upon approval and issuance of the labor certification, employer then makes a petition to the United States Citizenship and Immigration Service on behalf of the foreign worker
3. Upon approval of the petition, the foreign national (if otherwise eligible) makes an application for a “green card” (permanent resident status).

Before the employer can make an immigration petition for the noncitizen worker, the business (or private household) must obtain a “labor certification” from the Department of Labor with respect to the “offered job”. A labor certification will be issued if the employer can establish that, after a fair test of the labor market, the employer is not able to find any U.S. worker qualified and willing to work for the sponsor in the “offered job” on the terms offered (essentially, “market” wage and working conditions).

Defining the Offered Job. Once the employer has decided to sponsor a foreign worker, the employer must determine what will be the job title, duties, wage, and working conditions for the “offered job”. The employer must identify the minimal requirements for education, experience, and specific skills. For labor certification purposes the employer must identify every skill, which is essential. Any U.S. worker who applies for the job and who meets the actual minimum requirements for the job will be considered qualified, resulting in denial of the labor certification. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job's minimum requirements. Although the recruitment procedure required of employers by the DOL after the application is filed has many similarities to the recruitment procedures used by employers, the two processes are very different.

Therefore, for purposes of the labor certification application it is very important to define the threshold point above which the employer is actually willing to hire any job applicant--that is, the employer's actual minimum requirements for the job. For that reason, the employer must carefully define the job duties, and think through all of the alternative combinations of experience, education, training, and special skills with which job applicants can perform those job duties.

In addition, the foreign worker must be able to prove that he or she met the employer’s minimal requirements before joining the firm and before filing of the petition.

Good Faith Recruitment. Once the employer establishes the job title, duties, wage, and working conditions, the employer must conduct a “good faith recruitment” for U.S. workers.

Prevailing Wage. The employer must obtain a prevailing wage from the DOL based on the employer’s minimal requirements.

Job Order. The employer must place a job order with the State Workforce Agency for 30 days. The company must register with the State Workforce Agency in the area of intended employment and place a job order for each job.

Internal Notice. Within the recruitment period, the employer is required to post a “Notice of Job Opportunity” for 10 consecutive business days at the employer’s work location and any and all internal media. At the end of the 10 business days period, the Internal Posting must be certified by the employer as having been posted for the required period.

Company Registration with the PERM System. The company representative with actual hiring authority must register the company with the Department of Labor. The registration must be done online here. Once the employer registers, the system will send a login and a temporary password via email. The employer will have to log in using the emailed information and change the temporary password.

Company Existence Verification. Once the company registers, the DOL may send a request for documents verifying the employer’s existence. The U.S. Department of Labor conducts employer existence verification checks to ensure that the sponsor is a legitimate employer. Common documentation requested by the U.S. D.O.L. are Form SS-4, which is the application that was submitted to the Internal Revenue Service for a FEIN number. Other documentation usually requested includes: articles of incorporation, certificate of existence, certificate of good standing, business license, state registration, utility bills, tax records, lease or mortgage agreements, etc.

Recruitment. All recruitment must be conducted between 180 and 30 days prior to filing the PERM application. Only one of the three additional recruitment steps for professional positions described below can be conducted within the 30 day period immediately preceding the application. All recruitment must be in good faith.

Two printed ads. In addition to the Internal Notice and the 30-day Job Order mentioned above, the DOL requires that the employer place 2 printed ads in the largest newspaper of general circulation in the area of intended employment.

Three additional steps for professional positions. In addition to the above steps, if the application involves a position, which the DOL deems to be a professional position, the employer must also undertake at least three additional different steps from ten options listed in the regulations.

Interview of Job Applicants. During the recruiting period, the employer may receive resumes from job applicants. The employer must review the resumes, and must contact all qualified applicants for a telephonic or an in-person interview, and document each contact (copies of letters, telephone records, contemporaneous notes, certified mail, etc.)

Layoffs. The PERM regulations provide that in the event of a layoff within the area of intended employment within six months of filing, the employer must notify and consider all potentially qualified laid off workers in the occupation or a related occupation. A layoff is defined as any involuntary termination other than for cause. A "related occupation" is defined as any occupation for which a majority of the essential duties are the same.

Recruitment Report. When recruitment is complete, the employer must summarize its efforts to find US workers. The employer must maintain this report and evidence of all recruitment steps described above for five years after the employer applies for a labor certification. If the employer is unable to find a U.S. worker to fill the position, the employer can submit the labor certification application.

Employer responsibility. If the foreign national currently is employed by the employer, it is imperative that (1) the foreign national is paid as a W-2 employee; (2) that the employer have a federal employer ID number (FEIN), and (3) that the business has complied with all federal and state tax laws, registration requirements, and other regulatory requirements.

Employer’s ability to pay the wage. The employer will be required to provide its income taxes to for the year the employer applies for a labor certification. Based on the employer’s most recent tax return, the employer must prove that the business generates sufficient ‘taxable income’ or has sufficient ‘net current assets’ to cover the wage required to be paid.

The PERM regulations are very complex.Our attorneys are experienced in preparing and filing labor certifications and can help ensure compliance with the regulations. Contact our Immigration Lawyers of Zneimer & Zneimer P.C. for assistance.