A Short Road Map of the PERM Labor Certification Process

Employers oftentimes want to sponsor an amazing foreign national for a green card but they don’t know where to start. For most types of positions, the employer will start by conducting a test of the US labor market. After government approval, the employer can then apply for the employee’s green card. This process, known as PERM Labor Certification, should be understood at the beginning of the process. In this post I briefly walk you through the steps in the PERM Labor Certification Process so that you can know what to expect.

STEP ONE: Determine if the PERM Labor Certification is Required

Your first step in the PERM Labor Certification Process is to determine if it can be avoided. This is best accomplished by working with a business immigration lawyer. If PERM is not required, then the green card can be obtained much more quickly. In order to be exempt from the PERM Labor Certification Requirement, your employee usually must qualify for an Eb1 Green Card or a National Interest Waiver.

The Green Card Categories that do not Require the PERM Labor Certification Process

The Employment Based First Preference Category(AKA The Eb1 Green Card)

The Eb1 Green Card category is comprised of three different sub categories. Eb1a Green Cards are reserved for “aliens of extraordinary ability.” Eb1b Green Cards are given to outstanding researchers and professors. Eb1c Green Cards are reserved for qualifying Managers and Executives.

The National Interest Waiver(NIW)

If your employee does not fit in those categories, you should take a look at the National Interest Waiver Category.

In order to qualify for a National Interest Waiver, your employee must have an advanced degree and be a member of the professions. Or, in the alternative, they could qualify as an individual of exceptional ability in the sciences, arts, or business. Additionally, your employee would have to show that their work has both substantial merit and national importance. Finally, they would have to establish that it would be beneficial to the US to waive the job offer and labor certification process.

STEP TWO: Assess the likelihood of a Successful PERM Labor Certification Process

Once you have decided that there is no viable way to avoid the PERM Labor Certification process, you can start evaluating your likelihood of success. In making this determination, it is important to keep the purpose of PERM in mind. The purpose of the PERM process is to ensure that there are no minimally qualified US workers who are able to fill your position. If a minimally qualified US worker is found during the process, then you will have to hire them instead of your foreign national employee/candidate. Therefore, it is critical to first determine the minimum requirements for the job. Then, relying on your experience, you can try to predict your ability to find a US worker who will meet those minimum requirements.

STEP THREE: Obtain a Prevailing Wage Determination

If you determine that you are unlikely to find a US worker who meets the minimum requirements, it is time to move on the step of obtaining a prevailing wage determination which will tell you the minimum amount that you will have to pay your employee. The prevailing wage is obtained from the US Department of Labor by using Form 9141. As of the time of this writing, it takes approximately 4-5 months to receive a response from the department of labor.

STEP FOUR: The Recruitment Process

After receiving a prevailing wage determination, you can transition into the recruitment phase of the process. The PERM regulations divide recruitment requirements into two categories: recruitment for professionals and recruitment for non professional or skilled workers. The appropriate recruitment efforts must be made and documented for your open position.

Mandatory Recruitment Efforts for all Positions

All positions require the submission of a job order with your state workforce agency. In addition, two print advertisements are required in a newspaper of general circulation.

This must be a newspaper that is:

Published in the area of employment;
The most likely to bring responses from qualified US workers;
The most appropriate to the occupation and the workers likely to apply for the job opportunity

The content of the advertisements must include:

The employer’s name
Directions on how to apply
A job description that is specific enough to inform US workers of the opportunity
The geographic area of employment
The job duties and requirements

Recruitment Efforts for Professionals

There are additional mandatory recruitment methods for professional positions. In addition to the two newspaper ads and the required posting with the state workforce agency, recruitment for the professional position must include at least three of the following methods:

Posting on the employer’s website;
Posting on a job search website;
Using an employee referral program with incentives
Posting with a trade or professional organization
Utilizing the services of a private recruiting firm
Placing an ad in a local or ethnic newspaper
Placing a radio or TV ad
Participation in a job fair
Participating in on-campus recruiting
Working with a campus job placement office

After conducting the recruitment phase you must wait 30 days before you can submit the form 9089.

STEP 5. Give Notice of the PERM Labor Certification Filing

As part of the PERM process you are required to give notice of the labor certification filing to your employees. This will be done by notifying a bargaining representative of the filing or by physically posting the notice at the worksite. The notice must be posted or submitted to bargaining representative for at least 10 business days.

STEP 6. Assemble supporting documentation/Submit ETA 9089

All supporting documentation (ie. recruitment efforts, placed advertisements, received resumes, etc.) should be assembled before the PERM application is filed.

The PERM regulations detail the specific documentation which must be assembled. However, this documentation is not required to be submitted with the ETA-9089. Nonetheless, the necessary documentation must be gathered and organized before filing since it could be requested during an audit.

Post Approval Process

Once your PERM application is approved, you will be able to apply for your talented employee by using form I-140 and submitting all the required documentation. This is best accomplished by working with one of the many talented business immigration lawyers that we have through the US. If you have any questions for me, you can send me an email at ben@frearlaw.com