An Introduction to PERM Labor Certification, the First Step toward Employment-Based Permanent Residency
What is PERM labor certification, and how can it be utilized by your team? Let’s take a closer look at this employment-based immigration process and how it can lead to permanent residency or green card status.
PERM stands for Program Electronic Review Management (PERM). This is the software used by the U.S. Department of Labor (DOL) for submission of PERM labor certification applications by U.S. employers. PERM labor certification is the first of three stages (PERM, I-140, and I-485 or immigrant visa processing if outside the U.S.) in the complex and lengthy employment-based permanent residency process. For many individuals, this is the first step towards obtaining a green card through their employment.
Watch this video for an overview from ImLaw on PERM labor certification.
The requirements for PERM labor certification are quite strict. Notably, employers must prove that there are no qualified U.S. workers available and willing to do the job. To prove this element, there are a variety of recruitment methods employers must undertake and properly document, even before submitting their PERM labor certification application to DOL. This is in contrast to temporary work visas processes, such as the H-1B, which do not require proof of the employer’s recruitment efforts. While a PERM application is pending, DOL can issue an Audit Notification letter requesting specific evidence of each recruitment effort and a summary of the recruitment results, which includes the lawful reasons for rejection of U.S. applicants.
Under law, employers are also responsible for paying all fees and costs related to PERM labor certification; the foreign national employee cannot pay these costs on behalf of the company. Finally, the position offered by the employer must meet or exceed prevailing wage requirements as determined by the Department of Labor. An official Prevailing Wage Request (PWR) must be filed with DOL, which can take several months to process (5+ months) before a Prevailing Wage Determination (PWD) is issued. Again, this is in contrast to the H-1B visa process, where an official Prevailing Wage Determination (PWD) is not required to file an H-1B case. While H-1B employers are required to pay the higher of the actual wage being paid to similar workers or the prevailing wage for the occupation, the government allows H-1B employers to utilize certain online wage data or qualifying private wage surveys to prove the wage requirement is met. A PERM labor certification application cannot even be filed unless an official Prevailing Wage Determination has been issued by DOL.
As aforementioned, all PERM labor certification applications may be subject to an Audit Notification. A PERM Audit Notification is commonly triggered by certain items in the PERM application itself including, but not limited to, the minimum stated education and/or experience requirements, foreign language requirements, and the foreign national’s ownership of the employing entity. Audit Notifications questioning the minimum stated requirements for the offered position typically request business necessity evidence to prove the requirements are truly necessary to perform the job in question.
After filing the PERM application, employers typically wait 12+ months to get a decision, although processing times fluctuate based on conditions at DOL. If DOL certifies/approves the PERM labor certification application, the next step is to file the I-140 immigrant petition with USCIS (stage 2), followed by the I-485 adjustment of status application (stage 3) or, alternatively, the immigrant visa process with National Visa Center (NVC) and the applicable U.S. consulate abroad, if the foreign national is not eligible to adjust status in the U.S. or is physically located outside the U.S.
How ImLaw Can Help
At ImLaw, we work closely with employers to strategically draft the PERM ad that serves as the foundation for all required PERM recruitment. Careful thought, evaluation, and discussion with employers precedes the drafting of the required minimum education, experience, skills and job duties of the offered position. Drafting a strong PERM ad is essential for a successful PERM labor certification case.
With our guidance, some employers implement the PERM recruitment schedule on their own, while others hire ImLaw to handle the PERM recruitment efforts for an additional flat fee. Since the DOL requirements for the evidence of each recruitment effort are strict, we know how to properly track, document, and submit all evidentiary requirements to meet DOL’s standards. This approach takes the pressure off employers with an already-full plate and often helps avoid or mitigate circumstances that would cause a PERM application to be denied.
The ImLaw team also proactively works with employers to proactively create a PERM audit file prior to filing the PERM application with DOL. The PERM audit file will contain a copy of the submitted PERM application, signed PERM attestations by the employer and foreign national, specific evidence of each PERM recruitment effort undertaken by the employer, resumes of the applicants who applied for the position in response to the PERM recruitment efforts, evidence of business necessity for the stated minimum education and/or experience or, if applicable, foreign language requirements, as contained in the PERM ad. Because of our extensive experience with PERM labor certification, we will help ensure employers are prepared to document and defend any aspects of their PERM application in event of an audit.
The PERM labor certification program is one of the more complex and inflexible employment-based immigration processes. We encourage you to retain experienced counsel like ImLaw if you have a valued foreign national employee that you wish to retain on a long-term, permanent basis. Get in touch with our team by emailing info@imlaw.biz to get started.