PERM
LABOR CERTIFICATION THROUGH PERM
Part of every employment-based petition is a procedure that is designed to show that
- an alien will not be employed when a qualified U.S. worker is available to fill the position, and
- shall an alien be employer, he will not be offered lower wages or worse working conditions than the local workers.
In order to meet the first requirement the employer is supposed to perform a good faith search of the local workers who meet employer's minimum requirements for the position that needs to be filled. If a local person of required education, training and experience, who is ready, willing and able to fill the position can be found it does not mean that the employer is forced to hire him, but it means that the application will not be approved. The employer cannot limit his search to foreign professionals and part of the requirement is that he tries the market for minimally qualified candidate, and not the most qualified, as is normally done when hiring an employee.
In order to meet the second requirement employer needs to obtain a prevailing wage data from the State Workforce Agency to make sure that he offers at least the same amount of wages that is prevailing in the area of intended employment in his state.
PERM PROCESS
Six months before filing the PERM application, employers are required to inquire into the prevailing wage, post a notice at the worksite and run two advertisements in local Sunday papers of general circulation most appropriate for the profession (though there are certain exceptions to this rule.) The two advertisements and the job order must be placed more than thirty days but less than six months before filing the application.
Also, the Department of Labor has a supplemental list of recruiting methods designed to be used when employing professionals, and the employer should use three of the listed methods and keep evidence of usage on file to provide to a certifying officer in case of an audit. Those methods are: job fairs; employer's web site; job search website other than the employer's own website; on-campus recruiting and campus placement offices; using the help of professional recruitment organizations, private employment firms or employee referral program with incentives; publishing in local and ethnic newspapers and radio and television advertising. Two of the above additional steps must take place within six months of filing the case and one can take place within a month of filing.
Employers have to prepare a recruiting report that describes recruitment steps undertaken and the result thereof; the number of hires, if any, and the number of US workers rejected, sorted by lawful job related reasons for rejections. The employer is advised to keep the US workers resumes and other application packages, also sorted by reasons to reject, because the Certifying Officer may request those for audit.
PERM is filed electronically; the employer needs to print out and sign the form once the petition is filed, and keep it on file because it becomes part of the I-140 package.
An Employment and Training Administration official reviews the petition and either certifies or denies it, or there may be an audit.
PERM AUDITS
After the PERM application was submitted, the Department of Labor can perform and audit of the employer; and we see more and more of those. AN audit does not mean that something was wrong with the application; in fact some of the audits are conducted randomly.
If an audit is scheduled, the Department of Labor shall send an audit letter to the employer, asking for additional documentation to be submitted within thirty days of the audit letter. The Certifying Officer has the discretion to grant an extension for another thirty days.
The Certifying Officer can request additional information before making a final determination and/or order the employer to conduct supervised recruiting.
After the audit is completed and the Certifying Officer reviews the evidence he issues a Final Determination and sends it to the employer.
If the Certifying Officer decides that the labor certification should be granted, he will also include the certified application and a letter telling the employer that the next step is to file the form along with an immigrant petition to the U.S. Citizenship and Immigration Services.
If the Certifying Officer decides that the labor certification should be denied, the employer can appeal his decision within thirty days to the Board of Alien Labor Certification Appeals. It is always a choice between filing a new one and appealing what was filed already since a new application in the same occupation for the same worker cannot be filed while a request for review is pending.
If the Certifying Officer finds that the employer produced inadequate or insufficient documentation, or finds that a material misrepresentation was made, or finds it appropriate for other reasons stated, the employer may be required to conduct supervised recruitment in future labor certification filings for a period of up to two years from the date of the Final Determination.