If you are an immigration lawyer, an employer who has sponsored a foreign worker for a green card, or a foreign worker yourself, chances are you have heard the term “PERM” before. The PERM certification is the primary step before a foreign national can continue their journey to achieving their employer-sponsored green card and is generally required for the EB-2 and EB-3 preference categories. But what exactly does the process to achieving a PERM certification entail?
What is PERM?
PERM, which stands for “Program Electronic Review Management,” is the first step of the green card process for foreign nationals seeking permanent residence through their employment. The U.S. Department of Labor (DOL) requires a sponsoring employer to pay the prevailing wage for the position, and to test the U.S. labor market to prove that no authorized U.S. worker is able, willing, and available to perform the required job.
How does it work?
To complete the PERM process, an employer must:
- Submit a request for a Prevailing Wage Determination (PWD) to DOL;
- Advertise and run a recruitment campaign as specified by PERM regulations; and
- File a PERM with DOL for certification.
The employer’s job description for the permanent position must be sufficiently detailed with a description of daily job duties, minimum education requirements, and experience and skills required of a candidate to perform the role. The job description should also specify if travel or supervisory responsibilities are required of the position.
Prevailing Wage Determination (PWD)
An employer must submit a request for a PWD to DOL. The PWD is designed to make sure that hiring a foreign worker for the permanent position will not adversely affect U.S. workers. The employer must agree to pay a “prevailing wage” to the foreign worker, which is determined based upon job classification, minimum requirements for the position, and the area of employment.
Recruitment Activities
There are several recruitment advertisements that must be placed by the employer within 30 to 180 days before filing the PERM application with DOL. Each of these advertisements requires special details and must be carefully drafted to satisfy PERM regulations. The required recruitment advertisements are:
- One job order placed with a state workforce agency;
- Two Sunday advertisements in a newspaper of general circulation in the area of intended employment;
- One internal posting notice; and
- Three additional advertisements from a predetermined list of options.
While recruiting, employers must consider any applicants that meet the required criteria and determine if they are qualified to fill the position. However, an employer can reject an applicant if it is determined that:
(1) The U.S. applicant does not meet the positions minimum requirements; and
(2) Any deficiencies cannot be remedied through reasonable on-the-job training.
Recruitment activities must meet certain DOL standards, and a detailed recruitment report must be kept on file. The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit, or in response to a request from the Certifying Officer prior to rendering a final determination.
The PERM process can take anywhere from approximately 8 to 15 months, varying based on underlying strategy and DOL processing times.
If you have questions on the PERM process, please contact our office to schedule a consultation with Jennifer Behm today!
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