Whenever employers wish to hire foreign nationals for a permanent position in their company, they have to go through the process of sponsoring the foreign national for a Green Card. In any conversation about this process, the word “PERM” may come up, in the context of the employer-sponsored labor certification. (There are other routes to the Green Card but this post will focus only on the PERM.) PERM stands for Program Electronic Review Management (sorry to all of you who had images of the iconic 1980s hairstyle in your head) and refers to the review of the labor market testing the employer must conduct in order to obtain a certification from the US Department of Labor (DOL) that no US workers exist to fill the job offered to the foreign national. In the process of getting a Green Card, the PERM (or labor certification) stage is the first of three stages. This is an employer’s application on behalf of a foreign national. Foreign nationals cannot sponsor themselves for PERM-based Green Cards.
A PERM is filed with the Department of Labor (DOL), not with US Citizenship & Immigration Services (USCIS). As part of the process, employers must test the labor market to see if there are any US workers who are able and willing to do the job for which the employer wishes to sponsor the foreign national. Employers must pay the cost of this process without seeking reimbursement from foreign nationals for any costs including attorney’s fees or advertising costs.
Employers often struggle with the fact that they must go through this formal DOL-led process even though as part of their normal hiring practices they have already found the person they want for the job. A frequently heard comment from employers goes something like: “We’ve already tried to look for US workers and were unable to find anyone. The best person for this job is the foreign national we’ve hired.” The DOL’s role, however, in this process is to protect American workers so they have set up procedures employers must follow before they are allowed to move forward with their permanent residency sponsorship of foreign nationals.
As the PERM is the employer’s demonstration to the DOL that they have made a good faith effort to recruit US workers, the foreign national beneficiary cannot be involved at all in the PERM process (apart from confirming their educational credentials, skills, and work experience to the employer.) Employers often find the PERM process frustrating if they expect that it will run just like their regular company recruitment. As explained further below, because of DOL’s rules, employers may find that requirements and procedures they use in their normal hiring process are not allowed in the PERM process.
The first part of any PERM case is to carefully and specifically define the job duties and requirements of the position that the employer is offering the foreign national. This may be the most important part of any case as the job description cannot be changed mid-way through the process and the details of that description impact many aspects of the rest of the application. The job requirements must list only the minimum requirements for the position.
Employers cannot list preferences; they can only identify the minimum education, experience, and skills or knowledge that the employer genuinely requires for the execution of the job. Employers are not allowed to tailor their requirements for the position to the credentials of the foreign national holding the position and must analyze their overall hiring practices to determine what the legitimate job requirements are for the position. If DOL thinks the job requirements were tailored to the foreign national and not the genuine and justified requirements of the position, they will deny the case.
Employers, while not tailoring the position, should be detailed in listing their exact requirements. If employers only provide a general or brief list of requirements, they will only have a very short list of grounds under which they are able to disqualify applicants. For example, if they do not list “ability to swim” as a requirement for a swimming instructor, they will not be able to disqualify any applicants who cannot swim. Implied or later remembered requirements cannot be the basis for disqualifying applicants.
When considering the job requirements, employers should note that foreign national beneficiaries will have to demonstrate they qualify for the position as advertised based on experience and credentials they possessed prior to joining the sponsoring employer. In other words and with limited exception, none of the skills/experience the foreign national gained on the job with the sponsoring employer can be used to qualify the foreign national for the position advertised. DOL reasons that if an employer was willing to train a non-US worker in a certain skill, they should be willing to train a US worker in that skill and thus that skill isn’t a true minimum requirement of the position.
Prevailing Wage Request
Once the job description is complete, employers then apply for a prevailing wage request with the DOL. The DOL examines the duties and the requirements of the job and determines the wage the employers must agree to pay foreign nationals once they are approved for the Green Card. Again, this is to protect American workers from employers looking to pay less to foreign workers.
Once the prevailing wage is issued by the DOL, employers must advertise for the position for which they wish to sponsor the foreign national. Basically, they have to start recruiting for the job that is the basis of the PERM. The DOL determines the content of the advertisements as well as where the ads must run. All ads must run on the DOL website for the state where the job is located for at least thirty days. The ads also must be placed in the newspaper of general circulation on two consecutive Sundays and must be posted at the actual worksite of the employer for at least ten business days.
In addition, for most professional positions, DOL identifies nine additional forms of advertising, of which employers must choose three:
- Post the ad on employer’s website;
- Post the listing in a journal that is sponsored by a trade or professional organization;
- Post on job search web site other than the employer’s website;
- On campus recruiting (e.g., post the ad at local school campus if a position requires a degree but no experience);
- Use of a private employment firm (headhunter);
- Job fair posting (e.g., professional annual meetings);
- Employee referral program with clear incentives;
- Local or ethnic newspaper (if appropriate for the position); or
- Radio ads.
It should also be remembered that employers are testing the labor market in the specific geographical area where the job will be located. Therefore, if the job location moves out of the metropolitan statistical area where the advertising was conducted, the entire process must begin anew to test the market in the new area.
After all the ads have run, employers must wait thirty days after the last ad has come down before it can file the PERM, to allow time for anyone who viewed the ads to submit their resume to the employer. Employers must assess every application in good faith. An applicant can only be disqualified for genuine business-related reasons and based on the requirements set forth in the job description. For example, if an applicant comes in for an interview and the employer doesn’t really get along with the applicant or thinks they are not a “good fit,” under DOL rules those are not legitimate reasons for the applicant’s disqualification. Again, it may be entirely normal for employers to choose workers partly based on their personality and how they will work as part of a team but since DOL has no way to measure this subjective quality, it won’t allow it as a reason for disqualification under the PERM process.
Employers must detail all their recruitment efforts and the reasons for disqualification of any applicants in a report. Employers must also maintain an audit file with proof of all the advertising and any responses including the report of their efforts for at least five years in case it is ever requested by DOL. If employers find that all applicants for the position are disqualified based on their lack of experience as detailed in the job requirements, and at least thirty days have elapsed since the last ad was run, the PERM application itself can be filed online with the DOL. If while testing the market the employer identifies a qualified US worker, the PERM case on behalf of the foreign national cannot move forward. Only if no US workers are found after a good faith test of the market can employers file the PERM application. The filing of the PERM is the employers representation to the DOL that they conducted a good faith recruitment and were not able to find any US worker who could fill the position they want to fill with the foreign national.
Once filed, DOL will send employers a verification email to make sure that the application was legitimately filed by the employer. Employers must respond to DOL within seven days of contact or the application will be denied. After that, the application goes on for processing with DOL for adjudication. Processing times are continually changing but DOL publishes the average processing times online.
On occasion a case may be audited before final adjudication. If audited, employers must prove all the elements to which they attested in the filing of the PERM and provide responses to any additional questions. For example, they must show the actual tear sheets for all the advertisements that they ran as part of the recruitment process as well as the resumes of any applicants. When a case is audited, it will take longer to receive a final adjudication of the PERM.
Approval or “Certification”
When a PERM is approved (or “certified”) by the DOL, it means that the DOL has certified that there are no US workers who could do the job offered and, therefore, employers are authorized to petition for an immigrant visa (Green Card) for the foreign national so he or she can work in the job offered permanently. Upon approval of the PERM, employers may file a form I-140 (immigrant visa petition) with USCIS. This must be done within 180 days of the PERM approval or the PERM will expire and become unusable. In the I-140 process, employers must provide the approved PERM and attest or prove their ability to pay the prevailing wage determined way back at the beginning of the PERM process. Additionally, employers must demonstrate that the foreign national being sponsored is qualified for the position as advertised in the PERM. Like the PERM application, the I-140 is completed and filed by the employer on behalf of the foreign national.
Once the I-140 is approved, the foreign national beneficiary may move on to the third and final step of the process by filing an I-485 application with USCIS if an immigrant visa number is available based on the classification under which the I-140 is approved and the beneficiary’s country of birth. The US Department of State issues a monthly Visa Bulletin providing this information.
The Green Card process through PERM is neither quick nor easy. Understandably DOL wants to ensure the US workforce is protected and has set up a process that aims to do that. Nonetheless, if employers are vigilant and careful in following all the steps identified by the DOL, they can keep those foreign workers who fill a position in their business that cannot be filled by a US worker.