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The U.S. Department of Labor (DOL) allows a U.S. employer to hire a foreign worker to work permanently in the United States.  The process with the DOL is known as “PERM”. The PERM process with the DOL is the first and most important step of a multi-step process to obtain the green.

The employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA) certifying that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers.

The PERM process requires the employer to conduct a series of recruitment activities to test the labor market before filing the PERM application. If sufficient able, qualified and willing U.S. applicants (US citizens or green card holders) are not found through the recruitment process, the employer can submit a PERM labor certification application with the DOL.

Under PERM regulations, employers have the option of submitting the labor certification application electronically or by mail, directly to the DOL for adjudication.  Electronic filing is highly preferable. No supporting documents are submitted at the time of filing. However, the petitioning employer must conduct all required recruitment activities, and have all supporting documents ready prior to filing. Recruitment documents (such as newspaper tear sheets, website print-outs, job orders, postings, etc.) should be saved by the employer for 5 years to ensure compliance with a potential audit by the DOL to review the case. Initially, according to the DOL, an electronically filed PERM labor certification application was expected to be processed in 45-60 days unless the case was audited.  However, the current processing time for an unaudited case is 6 to 8 months. If the case is selected for an audit, the employer must submit all requested documents within 30 days.

Steps for filing the PERM

Step 1: Prevailing Wage Request (“PWR”).  The employer makes a PWR on Form 9141 with the DOL visa its website http://icert.doleta.gov.  The PWR includes information about the job offer including job duties, minimum requirements, special requirements, job location, etc. DOL then uses this information to issue the employer a prevailing wage determination (“PWD”), stating the average wage for the specific job position in the job site location.  DOL uses the OES/SOC Wage Library.
Step 2: Placing the Ads and Recruitment. This step is critical because the entire labor certification process is based on the results of the employer’s recruitment efforts. Employer’s recruitment effort must be conducted in “good faith” which means that the advertisements must be genuinely designed to attract available U.S. workers.  Advertisements must be placed in local newspapers, with the State Workforce Agency, and posted at the worksite location. For professional jobs (i.e. jobs that require a bachelor’s degree or higher), employers must place 3 other advertisements.  All ads must be run within 180 days of filing the PERM with DOL. Any ad that is older than 180 days at the time of filing the PERM, cannot be used for the PERM, and employer will need to place another ad before filing.

Step 3: Filing PERM.  After the ads are complete, employer will file the PERM (ETA Form 9089) with DOL, provided that no qualified and willing U.S. workers applied for the job. The ETA 9089 is filed electronically at the DOL website: http://www.plc.doleta.gov.  The ETA 9089 contains information on the job opportunity, worksite location, job duties, requirements, prevailing wage, employer’s recruitment process, and information about the foreign worker including personal information, employment and education background.

Once the ETA 9089 is filed, employer waits about 6-8 months for DOL to adjudicate the PERM application. DOL can approved, deny or audit the PERM. If audited, employer must submit additional evidence for the application by mail. DOL is taking almost a year to respond to employers’ audit responses, and will either approve or deny the PERM application.

For more information, you can contact:

Richard A. Newman
Attorney At Law
rnewman@richardnewmanlaw.com