PERM (Program Electronic Review Management) is a government program by which the Department of Labor (DOL) makes sure that new employment opportunities cannot be filled by U.S. citizen candidates, and instead, immigrant employees can work the offered jobs. This program entails many steps that employers must take and complete to prove the lack of qualified U.S. citizen workers. PERM program is relatively new (established in 2005), and was designed to speed up to process of designating the U.S. workers' ineligibility for new employment opportunities.
PERM application process can be a long and confusing one. There are various steps that need close attention and consistent watch. Hence, we hereby prepared a step-by-step guide for PERM application that will make the process clearer for hiring employers.
Employer's Job Definitions:
The initial step. Employers must clearly define the job opportunity and list the minimum requirements needed. Employers must also present the road map of recruitment and address any possible issues.
Prevailing Wage Determination (PWD) from the Department of Labor (DOL):
After the initial step is complete, employers may begin with the request of PWD from the DOL. PWD is a standard procedure for determining a minimum wage level for a certain job position in a given state and local jurisdiction. PWD is another precaution of the DOL to ensure that the employment of a non-citizen will not be unfair to U.S. citizens who hold the same or similar job positions. The average wait time needed for PWD to be determined is 6 months.
Recruitment is the process by which the employer conducts market research and promotes the job offer. Recruitment is another precaution for preventing unfair treatment of U.S. citizen employees. Labor Certification (LC) must be approved by the DOL within 180 days after the start of the recruitment process. Employers must also spare 30 days before applying for the LC in which they do not conduct any recruitment campaign except three “additional” recruitment options. These additional recruitments can be chosen out of ten recruitments listed by the DOL.
Ten recruitments are as follows:
- Job fairs
- Employer’s website
- Job search websites other than the employer’s
- On-campus recruiting
- Trade or professional organizations/publications
- Private employment firms
- Employee referral programs with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertisements
Filing Labor Certification with the DOL’s ETA:
After the recruitment process is over, employers must apply for Labor Certification by filing the ETA Form 9089, Application for Permanent Employment Certification, with the DOL. You can reach the form via the Foreign Labor Certification website.
The DOL makes a decision on LC:
The DOL is deciding on LCs take varying times. LCs processing times are available at Foreign Labor Application Gateway (FLAG) website. The decision can be in favor of and against the application. The DOL can choose to audit the application as well.
Possible DOL Audit or Denial:
In case of potential DOL audit or denial, employers are given extra 30 days to respond to the DOL’s office action. Employers reserve the right to file an appeal of the decision. However, the DOL processes employer appeals in several years which elongate and further complicates the application. Hence, we would not advise you to appeal but restart your application from scratch instead.
With the implementation of the PERM program starting in 2005, the employer is designated as the supervisor of all the labor certification steps except the prevailing wage determination. This undoubtedly enabled faster processing and decision-making of LCs. On the other hand, as the leading figure in LC applications, employers can be overwhelmed and frustrated with the unexpected turns, up and downs, unfortunate delays, and further inspections that they might encounter throughout the application process.
In that regard, we strongly recommend that employers should consider the help of legal professionals by seeking insightful counsel or teaming up with experienced attorneys to manage the application process. Here at Grape Law PLLC, we believe that our professionalism, as well as result-driven approach, will ease the burden on employers by mitigating potential legal issues and resolving them in employers' best interest.