The PERM labor certification is a system implemented by the U.S. Department of Labor (DOL) to make certain that employers who aim to employ alien personnel in the preferential suitability slots are not likely to reduce the existing chances for Americans or reduce the wages they earn. LCAA is necessary when a U.S. employer is willing to hire a non-U.S. citizen for an employment-based visa (used in an EB-2). The DOL considers the availability of equally qualified American workers and where hiring a foreign worker is likely to adversely affect the wages or working conditions of workers in the United States.
After PERM certification is obtained, employers may proceed in filing USCIS Form I-140 to initiate the USCIS process of granting an employment-based green card to the foreign worker.
PERM Application Process
To apply for a PERM labor certification, employers must file Form 9089 (Application for Permanent Employment Certification). The process is outlined by federal regulations, and employers must follow specific steps to ensure their application meets the Department of Labor’s requirements.
Basic Requirements for PERM Labor Certification
To apply for a PERM certification, employers must meet the following key requirements:
- Job Availability: Employers must ensure the position is available to U.S. workers and publicly advertise the job to recruit U.S. workers.
- Wages: The wages offered to the foreign worker must meet or exceed the prevailing wage rate for the job in the relevant area. Employers must request a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA) before filing.
- Employment Conditions: Employers must confirm they can hire the foreign worker immediately and that the job is permanent and full-time.
- No Discrimination: The hiring process must not discriminate based on race, gender, nationality, or other protected characteristics.
- Qualified U.S. Workers: If a U.S. worker applies, the employer must ensure the foreign worker is hired only after qualified U.S. applicants are denied for lawful, job-related reasons.
- Employer’s Financial Capacity: The employer must demonstrate they can pay the offered wages.
Pre-Filing Recruitment Process
Employers must follow specific recruitment steps before submitting their PERM application. These steps may include placing a job order with the SWA, running advertisements in newspapers, and using additional recruitment methods, such as job fairs or online job boards. The exact recruitment requirements depend on whether the position is a “professional occupation” (requiring at least a bachelor’s degree) or a “nonprofessional occupation.”
Giving Notice to Current Employees
Employers must notify their current employees or union representatives about the upcoming PERM application. This notice must include details like the offered wage (which must exceed the prevailing wage) and information on the Certifying Officer overseeing the application. The notice should be provided 30 to 180 days before filing the PERM application.
The Application: Form 9089
To apply for the PERM certification, employers must complete ETA Form 9089. This form can be submitted online or by mail. Employers must ensure the application is accurate and consistent to avoid delays or audits.
PERM Processing Time
The PERM process can take 6 to 12 months, but processing times may vary. Employers can speed up the process by filing electronically through the Permanent Online System, which allows them to track the status of their applications and receive quicker confirmations.
The 365-Day Rule for H-1B Visa Holders
Under the PERM 365-day rule, H-1B visa holders can extend their status in one-year increments while their PERM application is being processed. This ensures there are no employment gaps while waiting for the green card process to complete.
PERM Costs
While there is no filing fee for Form 9089, employers may incur other costs. These include attorney fees (typically between $2,000 and $6,000), recruitment expenses (such as newspaper advertisements), and filing fees for USCIS forms like Form I-140 (which costs $715).
After PERM Approval: The EB-2 Process
Once the PERM labor certification is approved, the employer can file USCIS Form I-140 to begin the green card process. This form must be filed within 180 days of PERM approval, or the certification will expire, and the process will need to start again.
Common Questions About PERM Labor Certification
What happens if the PERM application is denied?
If a PERM application is denied, employers may have to restart the process, incurring additional costs and delays. To minimize risks, employers should keep thorough records of their recruitment efforts and consider working with an immigration attorney.
What if a U.S. worker applies during the recruitment process?
If a qualified U.S. worker applies, the employer must carefully evaluate the application and reject the U.S. worker only for lawful, job-related reasons. Failing to follow this process can result in a denial or audit.
How does the recruitment process for PERM differ from standard hiring?
The PERM recruitment process is more structured and regulated than typical hiring processes. Employers must follow specific steps, including advertising in prescribed locations and using certain recruitment methods while documenting everything carefully.
How do prevailing wage determinations affect the PERM process?
The wage offered to the foreign worker must meet or exceed the prevailing wage for the position. Employers should ensure the job duties and wage levels are clearly defined to avoid delays or denials due to wage disputes.
What if there are changes to the job or business during the PERM process?
Changes to the job description or business structure can impact the PERM process. Employers may need to file a new application if significant changes occur, so it’s important to consult with legal counsel to ensure compliance.
How can employers prepare for a potential DOL audit?
To reduce the risk of a DOL audit, employers should ensure all documentation is accurate, consistent, and complete. They should be ready to provide records of the recruitment process, job details, and other relevant information.
What if there are discrepancies between the PERM application and Form I-140?
Discrepancies between ETA Form 9089 and Form I-140 can lead to delays or denials. Also, Employers should ensure that all details, such as job duties and wages, are consistent across both forms.
How can employers meet PERM’s recruitment requirements in a specialized job market?
In niche industries, employers may find it challenging to meet PERM recruitment requirements. However, they must still follow the prescribed methods, including using industry-specific job boards and professional networks.
