In our modern business climate, employers need specialized workers.
Businesses do not want employees who can do 1,000 things fairly well.
They want employees that can do a hand full of tasks at an extremely high level. Unfortunately, the process of searching for such employees is frustrating. My wife, who was a recruiter for a number of years, used to vent about the challenges of filling such specialized positions. For the HR professional dealing with this situation, finding the right person feels like an impossible mission.
The good news is that technology enables us to conduct global searches for the talent that we need to enable our businesses to thrive. Sometimes, employers can find talented foreign nationals in the US who can do the work. Or, they may find someone living in a distant corner of the globe who has the needed skills. In either of these scenarios, the PERM labor certification process would likely have to be completed before you can sponsor for your future rockstar employee.
What is PERM Labor Certification?
The PERM labor certification is a foreign labor certification. It requires employers to test the labor market before sponsoring an employee for a green card. This requirement is in place to ensure that foreign nationals are not displacing, or being selected over qualified US workers. Once the perm labor certification process is complete and the US government is satisfied that no US workers are willing and able to do the job, the employer can sponsor the foreign national employee for a green card.
Steps in the PERM Labor Certification Process
STEP ONE: DETERMINE IF PERM IS NECESSARY
The first step in the PERM labor certification process is to determine if the process is required. Usually it is required, but in some circumstances it is not. For example, for employees who fall in the Eb1 category, the PERM labor certification process in not required. The Eb1 category includes multinational executives and managers as well as outstanding researchers and individuals of extraordinary ability. Additionally, an exception to the perm labor certification process exists if your employee is in the Eb2 category and will be performing work that is in the national interest of the US. For such a case, you can apply for a national interest waiver that waives the requirement to obtain a foreign labor certification.
STEP TWO: THE PREVAILING WAGE DETERMINATION
If you decide, after consulting with your immigration lawyer, that a PERM labor certification is required, it is time to move to the next step. Typically, the next step is to obtain a prevailing wage determination. After you submit a prevailing wage request to the Department of Labor(DOL), the DOL will decide on the minimum amount that should be paid for the position.
STEP THREE: PLACE A JOB ORDER WITH A STATE WORKFORCE AGENCY(SWA)
The next step in the PERM labor certification process involves placing a job order with an SWA. This job order must be followed by a 30 day quiet period before the PERM application can be filed.
STEP FOUR: SUNDAY NEWSPAPER ADS
As part of your recruiting efforts you will be required to place two Sunday newspaper ads(if position requires a professional degree, an ad in professional journal can be placed in lieu of one ad). NOTE: This can be done at the same time as step 3.
STEP FIVE: ADDITIONAL ADVERTISING REQUIREMENTS FOR PROFESSIONALS
You will have additional advertising requirements if your position requires a professional degree. For such positions, three of ten additional recruitment methods must be used. The methods include:
Posting of the position on your website
Participating in a Job Fair
Posting the position on job search websites
Using a private employment agency for the position
Participating in on-campus recruiting
Advertisements through trade or professional organizations
Utilizing an incentive based employee referral program
Posting through a campus placement office
Posting in relevant local or ethnic newspapers
Placing radio or television ads
STEP SIX—POST A NOTICE OF THE JOB AT THE WORK SITE
You must post a notice of the job at the worksite for ten consecutive business days unless the position is unionized. The posting must include the salary for the position and the contact information for the DOL’s certifying officer. Additionally, you are required to post the notice in-house, in the same manner in which similar positions are posted.
Additional Issues Related to the Recruitment Process
CONTACT AND INTERVIEW REQUIREMENTS
As part of the PERM labor certification process, you are required to make a good faith effort to contact all applicants within a reasonable time frame. If an applicant is qualified he or she must be interviewed. When you interview the US applicants you must follow the normal company policy that is used to determine if the applicant could do the job.
US APPLICANTS CAN BE REJECTED FOR LEGITIMATE REASONS
Applicants may be rejected for lawful job related requirements such as failure to meet a specific requirement. However, the US applicant cannot be denied if they could acquire the necessary skills during a “reasonable” period of on the job training. The reasons for the rejections should be clearly documented by the employer and list the objective and quantifiable reasons for the rejections. These reasons should be included in a recruitment report. The recruitment report should also include the details of the recruitment efforts and list all of the applicants who applied.
STEP SEVEN: SUBMIT ETA FORM 9089
Given the technical nature of the PERM Labor Certification Process, you should hire an immigration lawyer who can help you avoid costly mistakes. Some of the most costly errors can occur on the ETA form 9089. Errors made on the ETA form 9089 are easy to make, can be fatal to the PERM Labor Certification process and cannot always be corrected!!!
STEP EIGHT(If the Labor Certification is Granted): FILE FORM I-140 FOR YOUR EMPLOYEE
After the labor certification is issued, you can file an I-140 worker petition with USCIS. I-140 premium processing is available for an additional fee of $1225. If you request I-140 premium processing you should receive a decision within 15 calendar days. If the petition is accepted, your future foreign national will wait for the opportunity to apply for adjustment of status or obtain an immigrant visa at a foreign consulate.
STEP NINE: MAINTAIN A PERM AUDIT FILE
An audit file containing the recruiting report should be assembled during the PERM process. Along with the recruitment report, the audit file will include the details of your recruitment efforts, resumes, the prevailing wage determination, notices and postings, business necessity arguments and information pertaining to layoffs. This audit file should be maintained for at least five years from the filing of the perm labor certification.
DENIALS
REASONS FOR PERM LABOR CERTIFICATION DENIALS
There are a number or reasons why perm labor certifications are rejected. These reasons include unnecessary foreign language requirements and labor certification applications for employees who obtained the expertise with the employer or through training paid for by the employer. If the Perm Labor Certification is denied, you will have the opportunity to appeal within 30 days of the decision. This decision should be made with the help of your immigration lawyer.
Conclusion
Finding the right person for your job opening can be an uphill battle. If you can find a foreign national who can fill a key position at your company, the hassles and expense of going through the PERM labor certification process will be justified.
Speaking with an immigration lawyer at the outset can help you evaluate projected costs and the likelihood of a successful PERM labor certification process.
