I have heard so many business owners say that just cannot find U.S. workers to fill the jobs at their companies even after trying different recruiting methods.  As you can imagine, it creates a lot of stress.  One avenue that may be available is the PERM process.

What is it?

The Program Electronic Review Management process, better known as the PERM process, is a process where a foreign worker can gain lawful permanent residence in the U.S. through his/her employer.  One of the steps involves the employer obtaining a PERM labor certification from the Department of Labor (DOL). This process has many steps including getting a prevailing wage determination from the DOL, and providing proof the employer was unable to find qualified workers in the United States.

There are three major steps involved in the process, which will be explained below.

1. Labor Certification through the PERM process.

The first step in the PERM process is for the employer to submit a prevailing wage request to the DOL online. This request must give detailed information regarding the job requirements, job duties, and the employer address. The DOL uses this information to determine the prevailing wage determination (PWD), which states the common wage for the specific job in that geographic area where the employee will work.  The PWD is important to the PERM process because the law requires employers to pay foreign workers the prevailing wage for the position. This ensures foreign workers are not being paid less than other workers in this same occupation and geographic region.  For example, a physician living in San Francisco, California will have a different PWD then a physician living in rural Montana.  As of this writing, it is taking approximately 3 months to receive the PWD back from the DOL.

The second part of the PERM process is to show the DOL that there are no willing and qualified U.S. workers applied for the job. There must be a good faith effort by the employer to attract any available U.S. workers. There are mandatory advertisements the employer is required to publish regardless of the type of position. One is with the state workforce agency (SWA) where the employment will take place (this must run for 30 consecutive days).  The second is in a major newspaper within the area on two different Sundays. For Salt Lake City, the Desert News or Salt Lake Tribune newspapers are good examples. The third mandatory requirement is the employer needs to place a notice of the employment opportunity on the company’s physical premises for 10 consecutive business days.  If it’s a union position, proper notice must be given to the union representative.

Additionally, if the position is considered a professional position, which is one that requires at least a U.S. bachelor’s degree or its equivalent, 3 other additional recruitment methods are required.  These do not have a length requirement to be posted.

If an employer is required to engage in 3 additional recruitment methods, there are 10 available options for this requirement, and the employer picks 3:

1. Place an advertisement with a private employment firm
2. Place an advertisement in a local and ethnic newspaper of the relevant work area
3. Place an advertisement with a trade or professional organization
4. Place a radio or television advertisement
5. Post the job on the company’s website
6. Place an advertisement with a college
7. Place the job posting on a job-search website.
8. On-campus recruiting at a local college
9. Employee referral programs
10. Participate in a job fair

While the advertisements are running, the employer must review the incoming applications and conduct interviews. There must be a detailed record of the resumes collected, interviews conducted and the reasons why the candidate was rejected.

The advertisements can’t be more than 180 days old from the time that the ETA Form 9089 is submitted to the DOL.  If one is older than 180 days, that advertisement cannot be used for the application and will have to be replaced which can cause significant delays.

The last step is the labor certification step is filing the ETA Form 9089. After the close of the advertisements, the employer will file the PERM application with the DOL using ETA Form 9089. However, the employer must wait at least 30 days from the date of when the SWA job posting has ended before it can file the ETA Form 9089.

The ETA Form 9089 provides the DOL information about the job opening including the duties, wage, worker qualifications, employer address and information, and employee information, such as place of birth and education credentials.  This form also serves as proof that the employer complied with the mandatory recruiting requirements and they were unable to find a qualified worker in the U.S. to fill the position.  If a qualified U.S. worker is found, the PERM process would have to end.

After this form is filed, it usually takes many months to hear back from the DOL. The DOL can approve, deny, or audit the application. If it is audited, additional information and evidence will be needed for the DOL to review before they make a final decision.

2. I-140 Immigrant Petition for Alien Worker
   1. After receiving the approved ETA Form 9089, the employer will file the I-140 petition on the employee’s behalf with USCIS. The petition submitted by the prospective employer will grant the foreign worker the ability to apply for lawful permanent residency to work and live in the United States permanently.

3. I-485 Application to Register for Permanent Residence or Applying For Immigrant Visa at U.S. Consulate/Embassy
   1. If the worker is currently in the U.S. and has maintained legal status she can file the I-485 Adjustment of Status form so she can get her current status changed to that of a lawful permanent resident. If she is not in the U.S., she would apply for an immigrant visa at a U.S. consulate/embassy.

*An important note – Since only a certain number of employment-based visas are issued each year, for some countries, there is a backlog, which affects the ability of the worker to file for adjustment of status or an immigrant visa right after the I-140 is approved.

Timing Restrictions

There are many timing restrictions and deadlines throughout the PERM process, so you must be diligent about making sure you are aware of them. Below are some time restrictions to be aware of:

• The SWA job order must run for 30 consecutive days, including weekends.
• The posting notice at the place of employment must be posted for 10 consecutive days, not including weekends.
• The employer must wait at least 30 days from the date of the job order or posting notice expires to submit the ETA Form 9089 to the Department of Labor
• All of the advertisements have to be published within the last 180 days to be counted as complying with the recruiting requirements on the ETA Form 9089.

Some Other Additional Requirements

• The employer must hire the foreign worker for a full-time permanent position.
• There must be a bona fide job opening available to U.S. workers.
• The requirements of the job must be customary to the occupation within the U.S. and cannot be tailored to the worker’s qualifications. There cannot be restrictive job requirements that would bar other qualified workers in the same area of expertise, so the correct drafting of the job description is very important.
• The employer must pay the prevailing wage for the occupation in the area of intended employment.
• The employer must keep proof of all advertisements for five years.

The PERM process is complicated because of the requirements and it can take a lot of time.  This is a general overview of the process and there are many factors that have to be considered because each employer has its own set of unique circumstances, and I work closely with my clients to make sure that the process is as seamless as possible.  I understand that this may be a biased opinion, but this is one of those processes that an employer shouldn’t do without an experienced immigration attorney.