Employment-Based Immigrant Visas – Part IV: The Labor Certification (PERM) Process
In most scenarios, a U.S. employer sponsoring a foreign national on an EB-2 or EB-3 visa must complete the labor certification process. The process is designed to prove two things: (1) there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment; and (2) employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Although that may seems relatively straightforward, the process is, in fact, intricate and employers must observe many strict Department of Labor rules and formalities.
The labor certification process is commonly referred to as the PERM process. PERM is an acronym for Program Electronic Review Management, the computerized system for filing labor certification applications. The PERM process is divided into steps, which must be completed in order and within certain timeframes. This blog entry is by no means an exhaustive discussion, but rather a general overview of the system. Indeed, entire articles have been written about each requirement listed below.
Is your company required to file a PERM?
In most cases, employers are required to perform the PERM process. However, in certain limited circumstances, employers are exempt. For example, all petitioners in the EB-1 categories (Extraordinary Ability, Outstanding Professor or Researcher, Multinational Manager or Executive) are exempt from labor certification. Other examples include:
- National Interest Waiver applicants
- Certain qualified physical therapists and professional nurses (Schedule A Group I)
- Aliens of Exceptional Ability in the sciences or arts (Schedule A Group II)
- Certain qualified graduates of foreign medical schools.
The first step of the PERM process is obtaining a prevailing wage determination from the United States Department of Labor’s Employment and Training Administration. Prevailing wage requests can be completed online via the iCert system. In the application for a prevailing wage determination, the employer must provide specific facts about the intended employment, including duties to be performed, educational requirements, experience, training, or any other special capabilities that are necessary, at a minimum, to perform the job. In addition, the employer must include a statement describing the alien’s qualifications. Any requirements beyond those “normally” required for the position (as defined by the Department of Labor) may result in an increase of the prevailing wage for the position.
In addition to obtaining a prevailing wage determination, the employer must also engage in a complex recruitment process. For professional positions, recruitment is broken down into four parts: the job order, the job posting, newspaper advertisements, and additional recruitment steps.
First, the employer must place a job order with the state workforce agency in the area of intended employment. The order must be published for 30 consecutive days and employers must retain documentation proving that the job order was published for the required time period.
Second, the employer must also post an internal notice for the position, called a job posting, for a period of 10 consecutive business days. If the position is covered under a collective bargaining agreement, the notice must be provided to the union representative. The job posting must contain specific information about the position (as required by law), which includes the proffered wage (which cannot be lower than the prevailing wage) and a statement that it is being posted in connection with an application for permanent alien labor certification.
Third, the employer must post the job opportunity in a newspaper of general circulation (in the area of intended employment) on two different Sundays.
Finally, the employer must engage in at least 3 of the 10 following additional recruitment steps:
- Job fairs;
- Listing on the employer’s web site;
- Listing on a non-employer job search website;
- On-campus recruiting (usually for positions requiring no experience);
- Trade or professional organizations;
- Private employment firms;
- An employee referral program (certain requirements apply);
- A notice of the job opening at a campus placement office (if the job requires a degree but no experience);
- Local and ethnic newspapers (if suitable to the job opportunity); and
- Radio and television advertisements
After the above recruitment steps have been completed, there is a mandatory 30-day “quiet period” to allow the employer to review the resumes or applications that have been received and to contact or interview all U.S. worker applicants who have met the minimum requirements for the position. The employer is then required to prepare a recruitment report, which must document all attempts to contact qualified workers and any lawful, job-related reasons for rejecting U.S. workers who met the minimum qualifications.
The recruitment process includes both “quiet period” and “freshness” requirements. All recruitment steps must be completed at least 30 days prior to filing the labor certification application. The only exception to this rule is that 1 of the 3 “additional” recruitment steps may be performed within the 30-day period preceding the filing. At the time of filing, however, the recruitment process must still be fresh: no recruitment steps may have taken place more than 180 days prior to filing.
Special recruitment situations
Two special situations alter the recruitment rules listed above. For nonprofessional jobs, the employer must, at a minimum, file a job order with the state workforce agency and place newspaper advertisements on two different Sundays. For employment of college and university teachers, the employer may engage in a “special handling” PERM process, demonstrating that the alien was selected for the position via a competitive recruitment process. The application for “special handling” PERM must include detailed documentation about the recruitment process (including all required evidence) and be filed within 18 months after a selection is made.
Once all items have been completed in the proper order and within the proper timeframes, the labor certification can be submitted for approval. If approved, the employer may then proceed with the immigrant visa petition process.
By now, it should be clear that the labor certification process is complicated. Small mistakes can be costly, and the Department of Labor is generally unforgiving in these situations. If you have any questions about the labor certification process or employment-based immigration visas in general, we at Donati Law would be honored to assist you.
For more information:
iCert (Online prevailing wage determinations)
“Special Handling” PERMs for College and University Teachers (Code of Federal Regulations)