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PERM, which stands for Program Electronic Review Management, is a program administered by the U.S. Department of Labor. Employers use this program to obtain “labor certification” for a job offered to a foreign national employee on a permanent basis, so that the employer can proceed to request an immigrant visa for the foreign national worker from USCIS.
This will enable the worker to obtain permanent residence (a “green card”) based upon employment in the EB-2 or EB-3 categories. The major advance implemented when the PERM program became active in 2005 was a method through which labor certification applications may be filed electronically with the Department of Labor through a dedicated web site, and at least initially adjudicated – often almost entirely electronically – based upon the employer’s statements and promises instead of actual proof of what the employer has done.
Case processing is heavily automated and review by Department of Labor officers limited to areas requiring training on the law and regulations as well as interpretation. This was intended to make the process much, much faster than it was in the past. By and large PERM has accomplished this, though in doing so it has created significant hurdles for the employer to overcome before the case is first filed.
So, the greatest practical significance most employers and foreign nationals going through the process will see is a reduction in the time it takes to get through the labor certification stage of the permanent residence process (in some cases, the process is years shorter than it used to be).
Not really, in most respects. PERM is merely the current program methodology for testing the labor market for U.S. workers and for interacting with the Department of Labor to obtain the needed certification.
PERM does not change the need to establish in some way that no U.S. worker is qualified, willing and available to perform a job in order for a labor certification to be issued. PERM doesn’t even change the need for an employer to actively recruit in the labor market to determine that this is the case. There were certainly some specific substantive changes in what is considered permissible when the PERM process was put in place – some cases that would not have worked pre-PERM could no longer be successful, and the opposite is true as well.
However, the substantive changes impact a relatively few, though not insignificant, number of cases. What PERM changed was the way in which the employer and the Department of Labor interacted. The most critical and significant change made by the advent of PERM is that the Department of Labor has moved from a system where the employer must “prove” that they have complied with recruitment requirements to demonstrate the lack of qualified and available U.S. workers to a system where the employer must simply “promise” that this is the case. While the Department of Labor will select cases for audit and require certain employers to prove certain aspects of what they promised for certain cases, this is no longer the universal norm.
PERM involves four major phases: Drafting, Recruitment, Submission, and Department of Labor Response.
The first step is drafting the substance of the case. Primarily, this means settling on a description of the position for which the employer seeks to hire the foreign national on a permanent basis, including the job duties and the requirements. The position needs to be drafted in terms of the employer’s minimum acceptable requirements for the position, not in terms of what the employer would like to have or what education and experience the proposed foreign national employee actually possesses. The proposed foreign national employee must meet the minimum requirements which the employer specifies (if the foreign national is currently working for the company in the offered position, the foreign national must have met these requirements at the time he or she was hired into this position).
Also during this stage, a Prevailing Wage determination is requested from the State Workforce Commission. This isn’t a trivial step – while completion and submission of the Prevailing Wage Determination Request is relatively uncomplicated once the position description and requirements have been established, it can take several months to hear back. When you do, often the determination may be higher than the employer believes to be justified. This process can delay recruitment significantly and can be problematic in terms of the wage offered.
The recruitment phase is in many ways the most critical phase of the process. It is essential that the employer act in good faith and be exacting in its compliance with the strict regulations governing this portion of the case. Timelines are very important here for every action undertaken, as is the way the employer interacts with applicants for the position.
Two print ads are always required for PERM recruitment, as is the internal posting and placement of a Job Order with the State Workforce Authority. Both print ads must appear in Sunday editions of newspapers, although in the case of professional positions a professional journal print ad placement can substitute of one of the two Sunday paper ads. The professional journal would normally be a monthly publication, and the other print ad would still need to appear in a Sunday newspaper. Often a long lead time to schedule a professional journal ad placement makes it preferable to simply go with two Sunday newspaper ads, even for professional positions. For all labor certification cases to be filed under PERM, a Job Order must be placed for 30 consecutive days with a State Workforce Authority (“SWA”) – these often run slightly longer than the required 30 days. In addition, for jobs that are deemed “professional” (usually meaning at least a Bachelor’s degree is required), the employer must recruit using three more methods out of a list of ten acceptable ways to recruit:
- Posting on the Employer’s own web site;
- Job search web site other than employer’s (this is among the mo0st commonly used options, as it is often included with a print ad at relatively little or no additional fee);
- Local newspapers or ethnic newspapers (they need to be appropriate for the job opportunity – that said, this is another of the more commonly-used methods);
- On-campus recruiting (usually for positions requiring no experience);
- Trade or professional organization journals or magazines (another very common recruitment method);
- Private recruitment or employment firms (executive search/”headhunters”);
- An employee referral program (it must include incentives for referrals, which must be documented);
- A notice of the job opening at a campus placement office (this only works if the job doesn’t require any experience, only a degree);
- Radio or television advertisements; and/or
- Use of an employee referral incentive program.
In addition to the two core print ads, and [for professionals] the three of the ten recruitment methods listed above, there must be an Internal Job Posting, normally a single-page notice describing the position and containing certain specific information which must be posted conspicuously at the work site for ten consecutive business days.
Any applicant must be reviewed by the employer, and in most cases interviewed to determine the level of qualification for the job. There are very strict rules concerning which reasons for disqualifying an applicant are valid and which are not.
Pre-filing Compliance Preparation
Finally, once all recruitment efforts are completed and necessary interviews with applicants conducted and before moving on to submission of the application, the recruitment file must be assembled. The employer (through the attorney) must assemble a justification for any non-standard job requirements, collect all evidence of recruitment (copies of print advertisements, evidence of any other recruitment performed, completed Internal Job Posting, resumes of all applicants), keep meticulous records of all contact or attempts at contact with applicants, and complete a detailed summary of the applicants and the lawful reasons for rejection. All of this is kept in a recruitment file which the employer must maintain.
The employer is required to keep all recruitment file information for a period of five years after the date the PERM labor certification application is filed. Although documentation from this file may be demanded in response to an audit, it is not submitted with the initial PERM application – even if the application is submitted by mail rather than electronically.
Online Form Preparation and Submission
Once recruitment has been conducted and the waiting period has elapsed, the labor certification application can be submitted. A large and detailed form is required- normally this is submitted electronically from a PERM-dedicated web site (although it may be printed and filed by mail).
This form – if submitted electronically – is initially processed by DOL computers according to predetermined logical rules. If certain “trigger” responses are detected, in most cases the system user (normally the attorney) will be prompted with a message that the case is not approvable with the current information while the electronic form is being completed, prior to submission.
In some cases, the system logic might not detect potential problems or certain circumstances requiring human review will trigger referral of the submitted case to a DOL officer. A trigger can consist of information on the form which is internally inconsistent (i.e.: two answers which contradict each other), or may be a completely legitimate and correct response which is simply too complex for the computers to handle (i.e.: a restrictive job requirement which must be justified by a business necessity argument, the validity of which can only be determined by the exercise of human judgment).
Once reviewed by the Department of Labor’s systems and officers, DOL will either approve or deny the application. There is generally no opportunity given to fix problems with the application once it is submitted, and the PERM process is extremely unforgiving of even minor typographical errors. So, aggressive review is critical before a case is actually submitted.
Department of Labor Response
Of course, the response from the Department of Labor to the Employer’s submission of a case can be approval or denial.
However, under the PERM program, these are not the only ultimate possibilities for Department of Labor post-filing response. Certifying Officers have jurisdiction over an application even after approval – another change brought about by the PERM implementing regulations. Therefore, even after a case has been approved the case can be audited and even revoked by the Department of Labor. This change was necessary to make the PERM system, which is based on employer attestations spot-verified by Department of Labor post-approval audits, function correctly.
Typically, an audit will consist of a written inquiry from the Department of Labor – some of which will be “boilerplate” (standard) inquiry language and some of which may be questions specific to the case. The documentation maintained by the employer of its initial hiring process, including how it arrived at its job requirements and prevailing wage, as well as its recruitment efforts, will be a critical factor in the employer’s success in responding to DOL audits.
Depending on the Department of Labor’s findings, a case may:
- Be approved after electronic or officer review with no further DOL involvement;
- Be denied after electronic or officer review with no further action (absent an appeal or later re-file if feasible);
- Be audited, where additional information is requested, and ultimately approved (possibly after a second informational request);
- Be audited, where additional information is requested, and ultimately denied; or
- Be audited, where additional information is requested, and a determination made that recruitment was somehow inadequate and that the employer needs to undergo a supervised recruitment process.