PERM: Lawfully Rejecting U.S. Workers
The EB-2 (with the exception of National Interest Waivers) and EB-3 visa categories require a U.S. employer to obtain a labor certification. This is done through Program Electronic Review Management (PERM). Under PERM regulations, a petitioning employer must first conduct a series of recruitment activities to test the labor market. If there is not a sufficient number of able, qualified and willing applicants, then the employer may submit a PERM labor certification application. This is done either electronically or by mail to the Department of Labor. The employer must also submit documentation demonstrating recruitment activities. If the application is approved (current processing times for PERM applications is about 90 days, but this is subject to change), the U.S. employer must file an associated immigrant petition with USCIS before the labor certification expires (180 days).
During the recruitment phase of the PERM process, employers are generally obligated to consider any and all U.S. applicants. In order to lawfully reject a U.S. worker, an employer must determine: (1) that the U.S. applicant does not meet the positions minimum requirements; and (2) that any deficiencies cannot be remedied through reasonable on-the-job training.
In some circumstances, it may be clear on the face of an applicants resume that he or she is not qualified. For example, the specified job requires a college degree, but an applicants resume is silent as to that fact. There, it is reasonable for the employer to assume the individual is unqualified. The applicant does not meet a major requirement of the position, and the employer is permitted to reject without conducting any further inquiry. If, however, an applicants resume indicates that he or she meets the employers stated job requirements, a duty arises. The employer is then obligated to contact the applicant and determine whether he or she is qualified for the position.
To demonstrate, we look at a recent Board of Alien Labor Certification Appeals (BALCA) decision Matter of Sunnyvale School District. There, a U.S. employer filed an Application for Permanent Employment Certification (Form 9089) sponsoring an alien for permanent employment as a Special Education Teacher. Following supervised recruitment efforts by the employer, the Certifying Officer (CO) at the Department of Labor rejected the application. The rejection was based on the employers failure to contact an applicant who lacked major job requirements. On Form 9080, two specific job requirements were outlined: (1) a Masters degree in Special Education or related field; and (2) a valid California teaching credential. The applicant in question possessed neither. The CO argued that the nature of the applicants resume indicated there was a reasonable possibility that she either possessed the necessary credentials, or could overcome any resulting deficiency through a reasonable period of on-the-job training. The Board disagreed. When an applicants resume is silent about major job requirements, such as a Masters degree, the employer has no duty to contact the individual. The duty to interview an applicant would only arise when he or she broadly meets a positions major requirements. This obligation is generally triggered when an applicant possesses the requisite degree, but does not necessarily possess knowledge of a particular skill also listed on Form 9089.
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PERM Process and Layoffs
When applying for PERM certification, the employer must file an ETA Form 9089, which broadly asks whether the employer has had a layoff in the area of intended employment in the occupation of the job opportunity or a related occupation within six months of filing the application. Answering yes to this question is very likely to trigger an audit and further scrutiny.
As a condition of PERM, the employer must notify and consider all potentially qualified employees that have been laid off or terminated in the six months preceding the application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker of the job opening for which PERM certification is sought. The employer need only notify U.S. workers (U.S. Citizens, legal permanent residents, asylees, and refugees) who worked in the same or related occupation. A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which PERM certification is sought.
Laid off former employees must have worked in the area of intended employment, which is the geographic area where the offered position is to be performed, including normal commuting distance. If the labor certification is for work in a specific location(s), and the former employee lives within arguably normal commuting distance, that employee must be notified. If the sponsored position does not have a set work location, but rather anticipates various worksites throughout the U.S., the employer must answer yes if there have been layoffs.
The employer must prove that all potentially qualified applicants were notified. They must maintain detailed documentation showing how and when notice was give. Notice can take the form of a letter, email or fax using the last known contact information for the worker. The notice must include a full description of the specific job and must invite the candidate to apply for the opening. The Department of Labor specifically states that simply informing a laid-off worker to monitor the employers website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employers regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.
When sponsoring a foreign national for U.S. permanent residence status, three applications need to be filed. This includes an Application for Labor Certification, an I-140 Immigrant Petition for Alien Worker, and an I-485 Application to Register Permanent Residence or Adjust Status or Immigrant Visa Processing.
The employer is required to pay:
PERM Fees: The employer is responsible for all fees associated with the permanent employment certification process, including recruitment costs and attorney fees. The applicant may cover all government and legal fees associated with the remaining I-140 petition and request for green card issuance.
The employer is not required to pay:
I-140 Fees: The employer is not required to pay any fees associated with filing an I-140. This includes both filing fees and attorney fees;
I-485 Immigrant Visa Processing Fees: The employer is not required to pay any fees associated with filing an I-485 or immigrant visa processing. This includes filing fees, biometric fees, medical fees and attorney fees.
In other words, the employer or the employee may bear the cost of filing Forms I-140 and the subsequent request for green card issuance. It is recommended that both parties understand and discuss these financial responsibilities before filing a green card petition.