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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.
So what is the PERM process?
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, which is a U.S. citizen or permanent resident.
How does the PERM process work?
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?
What Employers Should Keep In Mind When Determining The Minimum Requirements For The Position:
Alternative requirements = a secondary set of education and experience requirements for the offered position that are an alternate to the main requirements for the offered position
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 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.
Employer 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 off of 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 an explanation of why a candidate was disqualified for the position from a minimum requirements standpoint (if applicable).
What if the company finds a qualified U.S. worker?
When going through the recruitment process, if the company were to find a qualified U.S. worker who met 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!
Labor Certification (ETA 9089)
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, audit.
What is a PERM audit?
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.
What else should employers and employees going through the green card process keep in mind?
Good legal strategy is critical when a company plans to file for a green card for its employee. The PERM process can typically takes up to 12 months. 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 life 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.