The following information is intended to give you an overview of the PERM process also known as the Permanent Labor Certification.
The PERM process is required for those applicants who wish to file an EB-2 or EB-3 filing at the I-140 stage. Please note that the PERM process is not required for an EB-1 filing.
Difference between EB-2 and EB-3 filings
EB-2- Members of the profession holding an advanced degree or persons of exceptional ability.
The majority of EB-2 filings are based on the advanced degree requirement. A potential applicant can qualify for this by holding a Master’s degree or a Bachelor’s degree plus 5 years of progressive experience.
EB-3- Professionals, Skilled and other workers
Most EB-3 filings are filed as a professional worker or a skilled worker. A professional worker is a position which requires at least a Bachelor’s degree whereas a skilled worker filing only requires 2 years of experience.
One major difference between the PERM process and the H-1B process is that it is not possible to combine education and experience for EB-2 filings or the EB-3 Professional worker filing. Therefore, the candidate’s education must equate to a U.S degree by itself. So, someone that has the equivalency of a Bachelor’s degree for the purposes of an H-1B does not necessarily automatically have the same equivalency for filing a PERM. If the only way someone can obtain a U.S Bachelor’s equivalency is by combining education and experience, then a skilled worker filing is a better alternative. The Attorneys at PLG will review a candidate’s credentials and advise on whether an EB-2 or EB-3 filing is more appropriate.
Candidates considering EB-2 v EB-3 can view the visa bulletin which shows the current availability of Immigrant visas:
Before an employer can file a PERM with the Department of Labor the Employer is required to conduct a recruitment campaign in order to demonstrate that they have made a good faith effort to recruit U.S. workers, (The definition of U.S. worker includes U.S. citizens and Nationals, Permanent Residents, Refugees, Asylees and other Immigrants authorized to work in the U.S.). An employer must essentially be able to demonstrate that they cannot find a suitable U.S. worker to fill the offered position before proceeding with the PERM filing.
This means that an employer is required to review any resumes which they receive in relation to any of the recruitment to ensure that there are no qualified U.S workers willing and able to fill the position.
Typically, an employer is required to place the following recruitment as part of the PERM process:
- Newspaper advertisement- has to be placed in a newspaper of general circulation for 2 Sundays.
- A notice of filing– has to be posted on the company premises for 10 consecutive business days.
- Job Order- has to be posted with the State Workforce Agency for a period of 30 days.
- Three additional steps-In addition to the above an employer is required to carry out three additional recruitment steps which can include the following:
- Job fair
- Employer’s website
- Job search other than employer’s website
- On-campus recruiting;
- Trade or professional organizations
- Private employment firms
- Use of an Employee Referral Program
- A notice of the job opening at a campus placement office
- Local or ethic newspaper
- Radio and TV Advertisements
Prevailing wage determination
In addition to conducting a recruitment campaign, the Employer is also required to submit a request for a prevailing wage determination from the National Prevailing Wage Center. Typically, at PLG, this is done simultaneously with the recruitment campaign so that by the time the wage determination is received we can then proceed to file the PERM. This will be determined on a case-by-case basis.
Even though an employer is not required to pay the prevailing wage until the candidate receives their green card, an employer will be required to demonstrate the financial ability to pay the proffered wage from the date that the PERM is filed so it is important that an employer discusses this aspect with an experienced Immigration Attorney before commencing the PERM process to ensure that they will not face any issues. Quite often this requires the Attorney to review the Petitioning organization’s tax returns.
An employer is required to review all resumes received from U.S. workers within 14 days of receiving them. When reviewing the resumes from potential applicants an employer should compare the applicant’s credentials against the minimum requirements for the advertised position. An employer is only entitled to reject an applicant for a lawful related reason, for example, if the candidate does not possess the education and/or work experience that is required for the position.
When filing the PERM application, an employer will have to confirm whether they have had any layoffs within the last 6 months and that they have notified any individuals who have been laid off about the PERM position. If anyone has been laid off in the last 6 months, an employer will at a minimum need to review their resume to see if they possess the necessary education and experience to fill the position.
Prior to the filing of the PERM, an employer will need to ensure that they have completed a recruitment report which details the recruitment efforts to try and find a qualified U.S worker. This should be completed prior to filing the PERM. This report confirms the number of resumes received and the reasons why individuals were rejected.
Filing the PERM with the Department of Labor (DOL)
Once the recruitment is finalized, all resumes have been reviewed and the Employer has received the wage determination, the next stage is to prepare the ETA 9089 form. Once finalized this will be filed electronically with the Department of Labor.
The recruitment period typically lasts approximately 4 months. This includes the time taken to receive the prevailing wage determination. Once the PERM is filed approval usually takes approximately 3-4 months (assuming no audit). Audited cases take an additional 4-6 months.
When filing the PERM electronically, an employer does not have to provide copies of the recruitment or resumes which it received. However, some PERMs may be randomly audited, during which, DOL will specifically request copies of the recruitment and resumes to satisfy itself that the employer has made a good faith effort to recruit U.S. workers.
An employer is required to keep a copy of the filed PERM application and all supporting documentation for five years from the date of filing the application. This includes copies of all the recruitment, the prevailing wage determination, copies of all resumes received and associated paperwork and a copy of the filed ETA 9089 form.
Payment of Fees
The Employer is required to pay all fees associated with the PERM process to include the Attorney fees and the cost of the Newspaper advertisement. This cannot be paid by the employee.
If you are interested in starting the PERM process for one of your employees please contact our Senior Immigration Attorney, Chris Prescott at email@example.com or Immigration Attorney, Monique Mutombo at firstname.lastname@example.org.