Green Card / PERM – Labor Certification PERM

Download PERM Process Docs

On December 27, 2004, the Department of Labor published new rules for the Labor Certification Process referred to as PERM.  The Labor Certification process is the first phase to obtaining your permanent resident status.  In the Labor Certification process, the sponsoring employer must test the labor market to ascertain whether any qualified U.S. Worker is ready, willing and able to take the position for which there is an opening.

Pre-Recruitment Preparation

  1. Employee completes questionnaire submitted by Law Firm.
  2. Employee provides all documents requested by Law Firm.
  3. Employer provides position description to Law Firm including education and experience requirement for the position.

Step 1: Obtain Prevailing Wage Determination (PWD) from the Department of Labor.

Our Law firm will submit a requested form, on behalf of the employer to obtain the prevailing wage for the position offered.  The request will be made with the Department of Labor.  The governmental surveys such as the OES provide 4 levels of wages commensurate with experience, education, and the level of supervision.  Under PERM, the employer must pay at least 100% of the prevailing wage determination.


Step 2: Posting Notice

The employer must post notice of the job opportunity for at least ten consecutive business days.  The notice period must be between 30 and 180 days before filing.  It must contain the salary, or a wage range, so long as the lower level of the range meets or exceeds the prevailing wage.  The notice must say that any person may provide documentary evidence bearing on the application to the Certifying Officer.  However, in addition to the printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.

Step 3: Place Job Order with SWA

The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days.  Form ETA 9089 requires the employer to list the start and end date of the job order.  These dates serve as documentation of the job order.  The employer must wait 30 days from the last day of the posting of the job order with the SWA to accept resumes from applicants.

Step 4: Place Advertisements

The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed between 30 and 180 days of filing. The ads may be placed on consecutive Sundays.  If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.  Placement of the ad under an inappropriate heading or keyword would be considered a failure to make good-faith efforts to recruit U.S. workers.

The Advertisement must list:

  1. The name of the employer
  2. The geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites),
  3. A description of the vacancy specific enough to apprise US workers of the job opportunity.
  4. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Form 9089.
  5. The ad must direct applicants to send resumes or report to the employer, as appropriate.
  6. The employer’s physical address is not required.  A central office or post office box may be designated for receipt of resumes.
  7. The ad need not include the salary or a detailed listing of the job description and requirements.  However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage.

Documentation of the ad can be supplied by a copy of the newspaper page or proof of publication supplied by the newspaper. Form ETA 9089 requires the employer to list the name of the newspaper and date of publication for each advertisement.

Three Additional Recruitment Steps for Professional Jobs

The PERM requires that applications for professional jobs have additional recruitment.  The list of permitted additional recruitment steps in the final PERM regulation include:

  1. Job fairs
  2. Employer’s web site
  3. Job search web site other than employer’s (note that web page generated in conjunction with a print ad now counts as a website other than the employer’s)
  4. On-campus recruiting
  5. Trade or professional organizations
  6. Private employment firms
  7. An employee referral program, if it includes identifiable incentives
  8. A notice of the job opening at a campus placement office, if the job requires a degree but no experience
  9. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
  10. Radio and television advertisements

Unfortunately at this stage the Department of Labor has not provided guidance as to the length of time required for these additional recruitment steps.  However based on our experience in obtaining approvals of other cases, we will determine the appropriate length of time for each of the above respective recruitment steps.

The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month.  Only one of the additional recruitment steps may take place within 30 days of filing.  Form ETA 9089 requires the employers to specify the dates of each additional recruitment step.

Step 5: Interview Candidates and Prepare Recruitment Report

The employer must contact and interview qualified candidates for the position.  The employer must prepare a recruitment report that describes the recruitment steps taken and the results.  The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection.  The Department of Labor may, after reviewing the employer’s recruitment report, request copies of the US workers’ resumes, sorted by the reasons for rejection.  The employer must sign the recruitment report.  The final rule does not require the employer to identify the individual U.S. workers who applied for the job opportunity.

Step 6: Filing of the Labor Certification

On behalf of the employer and yourself we file electronically ETA form 9089 with the appropriate ETA processing center.  The employer will sign the form declaring the attorney to be the legal representative.  Once the ETA is certified, the employer and the beneficiary of the petition will sign the approved Labor Certification.  A copy must be maintained in the employer’s files; the original, signed ETA must accompany the I-140 when it is filed with USCIS.  A priority date will be assigned as of the date the electronic submission is accepted for filing.  Incomplete applications will not be processed, they will simply be denied.

No supporting documentation will be filed with the ETA 9089.  Instead, the employer must maintain supporting documentation in the event an audit is required or the Certifying Officer otherwise requests certain documents.  Such documentation, along with a copy of the ETA form, must be retained for five years from the date of filing ETA 9089.

Information from the prevailing wage determination will be incorporated into the ETA 9089.  The actual prevailing wage determination form should be retained as supporting document, to be furnished to DOL in the event of an audit.

Step 7: Adjudication

The Chief Division of Foreign Labor Certification is the National Certifying Officer (“NCO”). The NCO and the Certifying Officer (“CO”) of the PERM Processing Centers have authority to certify or deny labor certification applications. The decision to grant or deny a labor certification is based on whether or not the Employer has met the requirement of lack of U.S. workers who are able, willing, qualified and available for and at the place of the job opportunity.

If the labor certification is denied, the Final Determination will state the reasons, advise of review procedure contained in the regulations and advise that failure to request review within 30 days of the date of determination constitutes failure to exhaust administrative remedies.  If a request for review is not timely made, the denial becomes the final determination of the Secretary.  If no request for review is made, a new labor certification can be filed at any time.  If a request for review is made, no new application in the same occupation for the same alien can be filed until the review procedures are completed.

If the CO determines that the Employer substantially failed to produce required documentation, produced inadequate documentation or made a material misrepresentation or for other reasons, the CO may require the Employer to conduct supervised recruitment in future filings of labor certifications for up to 2 years from the date of the Final Determination.  The Employer may request reconsideration of this determination within 30 days of the date of the denial.  The request for reconsideration may not include evidence not previously submitted.  The Department of Labor can reconsider the determination or treat it as a request for review.