There are several ways for foreign workers to obtain a green card. One of them is through PERM Labor Certification. Because this is a process that an employer uses on behalf of their foreign employee, most of the requirements and documents need to be met and completed by the U.S. employer.
What is PERM Labor Certification?
The Program Electronic Review Management system, or PERM Labor Certification, is the method that the U.S. Department of Labor (DOL) uses to make sure that foreign immigrant workers are not taking the jobs of U.S. workers that are just as qualified.
Since this is a process that some tend to abuse, the DOL has created a series of employer recruitment requirements to make sure that you, the employer, have gone through the necessary steps to try and find a suitable U.S. employee to fill the position.
Fortunately, applying for a PERM Labor Certification can be broken down into three main steps.
- Submit a prevailing wage request. This will give the DOL information about the job, its requirements, and its location to determine what the prevailing wage should be for a foreign worker.
- Fulfill the employer recruitment requirements.
- File an ETA-9089 PERM application.
This second step is not only the most important but also the step that requires the most involvement on your part as the employer.
Employer Recruitment Requirements
In order to satisfy the DOL’s regulations, you must run a campaign to fill the position showing that you intend to find a suitable U.S. worker. To do this, you will have to create ads from three different categories: two newspaper ads, a job order, and three of ten available auxiliary options.
Two Newspaper Advertisements
Your newspaper ads must be printed in the generally circulated local publication on Sunday. For example, if you were advertising for a position in New York City, you would most likely need to have the ad published in the New York Times.
For your ads to be accepted, they need to include the employer name, directions on where the resumes should be sent, a detailed job description, and geographic location of the position.
The DOL will most likely accept ads that are run on two Sundays in a row. Because each person’s situation varies, be sure to speak with your immigration attorney before making any large decisions.
You also need to post a job order with the State Workforce Agency (SWA). This can be done by searching the agency in your state and posting the order on a personalized page on the agency’s website.
Each state has varying requirements and may require specific information to be present in the order. Make sure that you thoroughly research your state’s requirements before posting your job order.
It is important to note that the job order must run for thirty (30) consecutive calendar days in order to be counted toward the PERM Labor Certification process. You must also wait an additional thirty (30) days after the job order has ended before filing your ETA-9089.
While the DOL lists these ads as optional, it really means that you must choose three out of the ten options available. Those options are:
- Advertise for the job on your company’s website
- Incentivize current employees to refer qualified candidates
- Participate in relevant job fairs
- Actively recruit at a college or university (if the job requires minimal experience)
- Post the job at the campus office of a college or university
- Advertise the position on a job search website
- If your industry has a professional organization, you can place an ad in its publication
- Advertise on TV or a radio station
- Place an ad in a smaller local newspaper
- Use a private employment firm
Each of these ads requires specific documentation in order to prove their legitimacy. Speak with your attorney to find out how to keep a record of your efforts.
The DOL performs two kinds of audits to ensure that employers are not taking advantage of the PERM Labor Certification system.
The first type is a random audit. These are a general safeguard to the process, allowing the DOL to perform an audit on any petitioning employer at any time during the process.
The second is the targeted audit. These can be triggered by insufficient documentation or suspicious circumstances surrounding your recruitment efforts.
The following situations can trigger a targeted audit.
- Having excessively-specific job requirements tailored to foreign workers (e.g. foreign language or culture requirement).
- If the foreign worker subsequently hired possesses stock in the company.
- Hiring a foreign family member.
- If the foreign worker is underqualified for the position.
These scenarios raise the DOL’s suspicion that you did not do everything in your power to find a suitable U.S. candidate to fill the position.
If you are audited, you will need these documents:
- A copy of the PERM Labor Certification application ETA-9089.
- Thorough evidence of your recruitment efforts. These include, but are not limited to, job postings, resumes, interview reports, and reasons for candidate disqualification.
Note that if you are audited, withdrawing your application will not void the audit. You will still be called upon to respond and will be subject to the resulting consequences.
The amount of time it takes for your application to be approved or denied is dependent on several factors. These include the U.S. state that you conduct business, whether you filed online or through the mail, and whether you are audited or not.
If you are not audited, the average processing time is about six (6) months. However, if the DOL randomly selects you or you trigger a targeted audit, the process will take much longer.
You should receive an audit request within six months of filing. Then you will have thirty days to respond to the request. Once the DOL receives your response, the audits will be conducted according to the order that they were received. On average, it can take around nine months for a decision to be made once the audit has been performed. This has the potential to extend the processing time to almost two (2) years.
Unfortunately, while targeted audits can be prevented by thorough and legitimate recruitment efforts, the random audit cannot be avoided or anticipated.
If the foreign visa holder is using this process to work toward obtaining a green card, they will be responsible for any additional associated time and fees.
Can I Track My PERM Labor Certification?
The DOL keeps a detailed record of all applications and job orders currently being processed through its iCert Visa Portal System. By entering your case number into the system, you will be able to easily track the progress of your PERM Labor Certification petition.
What are the Fees?
The DOL usually does not charge any fees for filing for their programs. However, any documents filed with the USCIS (e.g. I-140) will incur a fee with that department.
It is important to note that the costs for completing a PERM Labor Certification go beyond initial fees. You should consider how much it will cost to run the necessary advertisements as well as any attorney fees.
How Our Immigration Lawyers Can Help
Because there are so many intricate requirements for this process, it is always advisable to hire an attorney to help. Here at SGM Law Group, our experienced lawyers are uniquely qualified to assist you with recruitment and filing.