The Program Electronic Review Management (PERM) process can often seem complex and intimidating for both employers and employees. This guide is designed to provide basic information on the steps required during this complicated process Whether you’re an employer looking to hire foreign workers or an employee seeking to understand the path to work-based permanent residence, this guide aims to answer all your basic PERM-related questions.
The PERM Labor Certification is a process overseen by the United States Department of Labor (DOL). Its primary purpose is to ensure that hiring foreign workers will not adversely impact the job opportunities, wages, and working conditions of U.S. workers. The process requires employers to complete a series of recruitment activities to test the labor market before filing a PERM application. If the employer can demonstrate, through this rigorous process, that there are no willing, qualified, available, and able U.S. workers to fill the position, they will likely be granted the Labor Certification assuming other legal requirements are met, thus enabling them to proceed with sponsoring the foreign worker for permanent residency.
The PERM labor certification is the first “step” of one type of employment-based permanent residency (“green card”) process. The PERM process is a complex one that an employer undertakes under the supervision and oversight of the Department of Labor (DOL). The process can be confusing and complicated for both employers and employees.
As the first step of the employment-based green card process, the employer has to perform a test of the labor market. This test is to ensure that the company (the employer) requires the skillset possessed by the foreign national employee and that the skillset cannot be found elsewhere within the U.S. labor market, i.e., a qualified U.S. worker who is a U.S. citizen or permanent resident.
Step 1: Determine the minimum requirements for the position.
Minimum requirements = the combination of education, experience, and skills that the employer requires as a minimum for entry into the offered position.
See also our recent webinar PERM 101: The Basics for Employers and Employees [Video]
Keep in mind: The minimum requirements provided for the position have to be the actual minimum requirements. Meaning that the company should prepare the minimum requirements as if the position were open today. Basically, what does the employer require at a minimum for a candidate to possess for them to be considered for that role?
Once the employer has determined the minimum requirements for the position, the attorney and paralegal can cross reference with the employee’s education, experience, and skillset background to ensure that the employee will also meet those minimum requirements and qualify for the offered position.
Based on the job duties and requirements provided, the Department of Labor will determine what SOC category it believes that the position will fall under, as well as the wage level for the position.
To begin the recruitment process, the employer must agree that it will pay the actual wage for the position or the prevailing wage as determined by the DOL, whichever one is higher. If the employer already pays the employee more than what the prevailing wage comes back, then the employer must agree to pay the actual wage once the employee obtains permanent residency.
Employers must perform a good faith test of the labor market. This is done through advertising the offered position in the area of intended employment. The ads must be placed for a minimum of 30 days to ensure exposure, and then there is a quiet period, also known as a cooling off period, of 30 more days in which potential candidates can submit resumes for the position.
The company is required in the recruitment process to receive resumes from potential candidates and to review the resumes to determine if the applicant would qualify for the position or not. If, based on the resume, the candidate seems to meet the minimum requirements and they are a U.S. worker, then the company will need to set up an interview with the candidate.
The employer will need to keep detailed records of the recruitment process, including the ads that were placed, the resumes received, and the review and interview process with each candidate, as well as an explanation of why a candidate was disqualified for the position from a minimum requirements standpoint (if applicable).
When going through the recruitment process, if the company were to find a qualified U.S. worker who meets the minimum requirements for the position and the candidate is ready, willing, and able to take the position, this means that the green card process for the foreign national employee comes to a halt.
Make sure to also visit our page on Employment-Based Green Cards to learn more about the different options available!
The final step of the PERM process, the Labor Certification, is where all of the work in the previous two steps comes together to be submitted for review by the DOL.
There are three outcomes after submitting the Labor Certification: approved, denied, and audited.
An audit is a request by the DOL to review the merits of the underlying case tied to the Labor Certification that was filed by the company on behalf of the foreign national employee. The DOL wants to see the steps that were taken during the recruitment process and ensure that it was completed in good faith.
Approximately one-third of all Labor Certifications filed are audited by the DOL. Although audits are typically random, there are certain requirements that will trigger an audit. For example, if there is a foreign language requirement for the position, that will typically trigger an audit.
Once the Labor Certification has been approved, the company can now move forward with filing Form I-140, Immigrant Petition for Alien Worker, which is the next step in the employment-based green card.
— The employee cannot be involved in the PERM process at all.
— All of the recruitment is completed under perjury, so it is essential that the company complete it in good faith; otherwise, it faces consequences from the DOL.
— You want to prepare a case like it is going to be audited– document everything and pay close attention to detail
Good legal strategy is critical when a company plans to file for a green card for its employees. If the company has made an error in even one part of the PERM process, this could spell disaster for the rest of the green card process. A delay in an approved PERM could mean the difference between employees being able to continue living and working in the U.S. versus having to uproot their lives and move back to their home country. Be careful and seek good legal guidance to assist you with the PERM process.
Make sure you have the best team to work with you on your immigration strategy. If you are looking to get into the green card process for an employee with your company, then contact our office today to speak with an attorney.
The complexities of the immigration process and the high-stakes nature of the outcome underscore the need for expert counsel. Our law firm, with its proven track record of success in immigration law, can provide you with the strategic advice and dedicated support you require. We understand the intricacies of the process and are committed to working tirelessly to ensure the satisfaction and peace of mind of our clients. Don’t navigate this complex process alone. Contact our office today, and let us guide you through your immigration journey.