11 Aug PERM – What does it test?
By Alexandria Sheffield
Alexandria Sheffield is an Attorney at Law for the Immigration Law Offices of Hadley Bajramovic, London, UK. She provides counsel in all aspects of corporate immigration to start-ups, multinational conglomerates, entertainment production companies, among others.
When a US employer seeks to permanently hire a foreign national, the employer must sponsor the foreign national’s Green Card. Though there are multiple stages of this process, this article will focus on Program Electronic Review Management (“PERM”) stage, a term that refers to the labor market testing an employer must conduct in order to obtain labor certification from the US Department of Labor (DOL).
What is PERM?
PERM refers to process in which employers test the labor market to see if there are any US workers who are able and willing to perform the job for which the employer wishes to sponsor the foreign national. PERM is also the name of application that must be submitted to the DOL after the employer has tested the market.
While many employers may think their normal hiring practices would suffice for this process, these practices will unfortunately not. Employers must undergo the formal DOL-led process to ultimately sponsor the foreign national.
The PERM process itself contains many steps that must be followed precisely in order to receive labor certification (i.e. the “golden ticket”) from the DOL. The following steps must be followed to successfully obtain labor certification from the DOL:
- Job Description:
The first step in PERM is to carefully craft a job description that specifically defines the job duties and requirements of the position the employer is offering to the foreign national. This is the most important step of the PERM process as it frames the entire PERM application. The foreign national’s job description must remain the same throughout all stages of the PERM process. When considering the job requirements, employers should note that foreign national beneficiary will have to demonstrate they qualify for the position as advertised based on experience and credentials they possessed prior to joining the sponsoring employer. In other words and with limited exception, none of the skills/experience the foreign national gained on the job with the sponsoring employer can be used to qualify the foreign national for the position advertised.
- Prevailing Wage Determination
Once the job description has been carefully crafted, the next step is to file the prevailing wage determination with the DOL. In submitting this application, the DOL will examine the requirements and duties of the foreign national’s position in order to determine the minimum wage- according to the employer’s geographic area- the employer must pay to the foreign national they seek to sponsor.
After the prevailing wage has been determined by the DOL, the employer must draft the ad language and begin advertising for the position they seek to sponsor. The following ads must be run for all PERM applications
- Ad on the DOL website for the state in which the job is located for at least 30 days
- Ad in a newspaper of general circulation on two consecutive Sundays
- Ad at the actual worksite of the employer for at least 10 business days
If the employer seeks to sponsor a professional position, employers must choose three of the following additional advertising methods:
- Post the ad on employer’s website;
- Post the listing in a journal that is sponsored by a trade or professional organization;
- Post on job search web site other than the employer’s website;
- On campus recruiting;
- Use of a private employment firm;
- Job fair posting;
- Employee referral program with clear incentives;
- Local or ethnic newspaper; or
- Radio ads.
After all of the ads have run, the employer must wait thirty additional days before proceeding to the filing of the PERM application with the DOL. This is referred to as the “cool down” period as this period allows time for anyone who has viewed the ads to submit their resume to the employer. Employers must assess every application in good faith. The employer can only disqualify an applicant for a genuine business-related reason and based on the requirements set forth in the job description.
- PERM Application:
After the ads have been run, and the cool down period has been followed, the employer can file the PERM application with the DOL. After the employer has submitted the PERM application and verified that the employer has legitimately filed the application, the DOL will begin processing the PERM application
When a PERM is approved (or “certified”) by the DOL, it means the DOL has certified that there are no US workers who could do the job offered and, therefore, employers are authorized to petition for an immigrant visa (Green Card) for the foreign national so he or she can work in the job offered permanently. Upon approval of the PERM, employers may file a form I-140 (immigrant visa petition) with USCIS. This must be done within 180 days of the PERM approval or the PERM will expire and become unusable.
The PERM process is not easy, but we are here to help. For more information regarding the PERM process, please contact us at [email protected]