Employment Based Green Card - PERM Labor Certification
Obtaining a green card based on employment requires a couple of steps. First, an employer must submit and obtain an approved Labor Certification PERM application from the U.S. Department of Labor. Next, the employer may file an I-140 green card petition for that alien employee with USCIS. If the visa bulletin shows that a visa is currently available for the immigrant visa preference of the alien, I-140 and I-485 adjustment of status applications may be submitted concurrently.
If a visa is not immediately available for the alien’s preference category, an I-140 is filed first, and the I-485 can only be filed when a visa number becomes available. It is only after an I-485 adjustment of status application is filed that an applicant is able to obtain work authorization or advance parole. Approval of the I-140 and I-485 applications results in the issuance of a green card to the alien. This page focuses on the PERM application process.
I. PERM - General Background Information
Most employers wishing to sponsor an alien for an employment-based permanent resident petition must first apply for PERM labor certification (“PERM”). The PERM process is administered by the U.S. Department of Labor (“DOL”) to ensure that qualified U.S. workers are not harmed by employers who hire alien workers. The acronym PERM stands for Program Electronic Review Management. Labor certification via PERM commenced on March 28, 2005. It allows applications to be filed electronically with no supporting documentation. With the PERM process, documentation of recruitment is required only if audited. Under the old labor certification process, extensive documentation was required at the time of filing in order to obtain a favorable outcome. Furthermore, under the old labor certification process, it often took years before a determination was made on the application. With PERM, a decision is made in a matter of months after the application is filed.
II. PERM - Prevailing Wage Determination
Before an employer begins its recruitment process, it must first seek a prevailing wage determination (“PWD”) from the State Workforce Agency (“SWA”) with jurisdiction over the employer’s geographical location. The SWA will issue a determination as to the prevailing wage for the position in question based on the job title, job duties, and other requirements (such as education and experience) listed by the employer. Depending on the SWA, the PWD is valid for 90 days to a year. It is necessary for the employer to file its PERM application or commence the recruitment phase within the validity of the PWD. Once the SWA makes a PWD, the employer is obligated to pay 100% of the prevailing wage in order for the PERM application to be approved.
III. PERM - Credentials of Beneficiary Alien
If the position requires experience, the PERM beneficiary alien may not use the experience gained while working in the position which is the subject of the PERM application. An employer might be allowed to use experience gained by the beneficiary alien in another position within the organization if it can prove that the experience is not substantially comparable to the position for which certification is sought. Examples of evidence that the positions in question are not substantially comparable would be job descriptions, organization charts, payroll records, and analysis of time spent on various job duties. Furthermore, the beneficiary alien may not use any education or training for which the employer paid in order to meet the minimum requirements of the position.
IV. PERM - Recruitment
Once the employer has the PWD, it can begin the recruitment phase of the PERM application. The recruitment campaign encompasses numerous steps. The employer is required to post an internal notice for at least 10 days, between 30 days and 180 days before filing the PERM application. The internal notice should include the salary (which meets or exceeds the PWD) and the job title. Furthermore, the internal notice must explain that it is being provided as result of the filing of a PERM application, that any person could provide document evidence bearing on the application to the DOL certifying officer (“CO”), and the address of the CO. The employer is also expected to post the position in all other in-house media if it normally posts other positions in said media. The employer should post the position for the period of time that it would normally post other positions. Given that the internal notice indicates it is being posted in connection with a labor certification application, it is not expected that an individual will apply as a result of the posting.
Another recruitment effort includes placing advertisements in a newspaper on two different Sundays (need not be consecutive Sundays). The newspaper used to run the advertisements should be one that employer normally uses during regular recruitment campaigns. In order to establish a good faith attempt in its recruitment campaign, the employer should choose the newspaper that would likely solicit able, willing, and qualified U.S. workers. For some professional positions the employer may substitute one of the Sunday advertisements with an advertisement in a journal. The advertisement must include the following: 1. name of the employer; 2. direct the applicants where to send resumes; 3. provide a description of the available position and the job duties; and 4. state the geographical location to appraise the applicants of the commuting distance. It is significant to note that the employer has the option of not including the wage offered. If the wage is included in the advertisement, it cannot be lower than the PWD.
If the employer is seeking certification for a professional position, it must engage in additional recruitment. The employer may satisfy its obligation by using any three of the following methods to recruit for the position: 1. the employer’s website; 2. job fairs; 3. job search websites; 4. private employment agencies; 5. on-campus recruitment; 6. trade or professional organizations; 7. employee referral program; 8. campus placement office postings (normally only if the job requires a degree but no experience; may use if employer can show alumni with work experience regularly seek job opportunities through placement office); 9. local and ethnic newspapers; and 10. radio and television ads. Two of the additional methods of recruitment must be run within 30 to 180 days before filing the PERM application. The last of these three can be conducted within the 30 days prior to filing the PERM application.
Another step that the employer must take during the recruitment process is to place a job order with the SWA that issued the PWD. The job order should be open for 30 days, but must close at least 30 days before the PERM application is filed. Note that some SWAs place the job order on America’s Job Bank (“AJB”). This would be sufficient to meet the job order requirement so long as the employer is working with the SWA on the AJB job order. In states were the SWA does not place the job order on the AJB, the employer may place a job order on AJB to satisfy the job search website requirement.
Finally, the employer will be required to determine if it laid off employees within 6 months of filing the PERM application. The DOL is interested in knowing whether the laid off employees held the same or related position in which certification is sought. A related position is one where the essential job duties are the same as the position for which certification is sought. An individual who was laid off would be anyone who was involuntarily separated from employment without cause. If such an individual exists, the employer is required to notify them of the active recruitment campaign and consider them for the position. Like all of the other recruitment steps, the employer will be required to keep adequate documentation. Documentation for all of the recruitment steps must be retained for 5 years from the date of filing.
The employer may reject applicants who fail to meet the minimum requirements of the position. However, if the applicant lacks a specific skill that can be acquired with a reasonable period of on-the-job training, the employer cannot use the lack of this skill as a basis for rejection of the applicant. An example of this would be were a position requires knowledge of a particular software program which could be learned in a matter of days. The DOL has not given a definition of what constitutes a reasonable period.
V. PERM - Filing PERM Application
The PERM application may be filed by mail or electronically. When the employer elects to file the application via mail, it must first determine to which processing center it needs to mail the application. To determine where to file the PERM application via mail, click here. When an employer elects this option, the application must bear the original signature. The priority date attached to the application will be the date it is received by the DOL. Should the employer wish to file the application electronically, it must first register with the DOL. Click here to register. Once registered, the employer or its authorized agent will complete the ETA form 9089. The priority date for an application filed on-line will be the day it was filed.
VI. PERM - Audits, Supervised Recruitment and Determinations By DOL/CO
PERM applications may be audited based on the entries in the application or because the application was randomly selected for an audit for quality control purposes. If selected for an audit, the CO will issue a letter requesting that specific documents be submitted by the employer. The audit letter will have a specific date as to when the requested documents are due. Normally, the employer is given 30 days from the date of the audit letter in which to respond. The application will be denied if the employer fails to produce the requested documents in a timely fashion. An employer’s failure to respond to the audit letter is considered a failure to exhaust its administrative remedies. This in turn means that the employer cannot appeal the decision to deny the application. The CO has the discretion to grant one extension to respond to the audit letter. Documents that could be requested as a result of an audit are: the prevailing wage determination, evidence of recruitment, a recruitment report (with or without résumés of applicants), and a letter from the employer explaining the business necessity. The employer may not withdraw the PERM application once an audit letter has been issued. If the employer chooses not to respond to the audit letter, it could be subjected to supervised recruitment for all PERM applications for a period of two years.
If the CO is not content with the application and/or response to the audit letter, the CO can require supervised recruitment. If supervised recruitment is ordered, the employer will be required to place job advertisements for three days (including one Sunday) in a newspaper of general circulation. Alternatively, the employer may run the advertisement in a journal, trade or ethnic publication. The employer must run another job order with the appropriate job bank. The CO has discretion to order additional recruitment steps. Before the supervised recruitment process begins, the CO must approve the language of the advertisements. The employer has 30 days from the time it was notified that supervised recruitment must take place to supply the CO with the proposed language of the advertisements. The employer must also inform the CO as to when the advertisements will be placed. In the advertisement, the employer must direct applicants to send the résumés to the CO and must include an identification number and address provided by the CO. The CO will request a recruitment report after the supervised recruitment has ended. The employer has 30 days to submit the recruitment report. Like the audit letter, the CO has the discretion to grant a 30 day extension to submit the recruitment report.
The CO will notify the employer in writing, either through regular mail or e-mail, of the decision. The CO will either grant or deny the application. If the PERM application is denied, the CO will state the reasons for the determination. The employer has numerous options available if it finds itself in this position. First, the employer may file a new PERM application for this petition. An example of this would be when the employer ran two of the recruitment steps within the 30 day window before filing the PERM application. The petition would be denied since the employer is allowed to have only one of the recruitment methods running during the 30 day period before filing. The employer could allow the requisite amount of time to lapse and refile (e.g. allow 30 days to pass after the last recruitment step closes but before any of the recruitment steps fall outside of the 180 day period). Second, the employer may file a motion to reconsider the determination by the CO. The employer may not submit new evidence not previously submitted. Instead, the employer would argue that the denial was a result of CO’s oversight, omission, or inadvertence. If the employer chooses to file a motion to reconsider, the employer may not file a new PERM application for the position which is the subject of the motion. The employer’s third option is a request for review with the Board of Alien Labor Certification Appeals (“BALCA”). As with the motion to reconsider, the employer may not submit new evidence. The request for review must include a legal brief analyzing the law. BALCA may uphold the denial or reverse the CO’s determination. If BALCA affirms the denial decision, the employer could seek judicial review with a court with jurisdiction under the Administration Procedures Act, 5 U.S.C. § 702. The standard of review under 5 U.S.C. § 706(a)(2)(A) is whether the agency’s action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.