PERM Green Card Procedure
- April 18, 2018
- Richard Newman
The PERM is an online employment-based green card application procedure based on a testing of the local labor market for a particular job position for a particular foreign employee or future employee. If no qualified and willing US workers apply for the job, the employer may offer that job to the foreign national.
The PERM process is governed by Federal Regulations at 20 CFR Section 656. The procedures are complicated and must be done in exact accordance with the regulations. An attorney experienced in the PERM process should be consulted before and during the process. There are many issues to be discussed and determined between the employer, the employee and the attorney, before starting a case. In this article, we cannot discuss all the issues, but the basic PERM process works like this:
Stage 1: Prevailing wage determination (PWD). Before placing any ads, a prevailing wage determination must be made by the U.S. Department of Labor (DOL). The application form ETA 9141 is submitted online to the DOL through the iCERT Visa Portal System. The request includes job information such as name and address of employer, tax ID#, job title, basic job requirements, and any special requirements. In response, DOL issues a PWD, which is the minimum salary that the employer must pay for the position once the green card is issued. PWD processing time is about 2 months.
Stage 2: Testing the labor market (advertising). DOL requires that ads must be placed in local media outlets including newspapers, internal office posting, and the state job bank (government website site). At least 3 additional ads must be placed and DOL provides a selection of media outlets for those ads such as foreign language newspapers, radio ads, the employer’s website, etc. There are strict requirements for wording and timing of each ad depending on the type of ad and media outlet. DOL does not monitor the advertising process of each employer. Rather, they rely on the employer’s statement that there were no qualified applicants for the job. Employers must retain detailed recruitment records for 5 years and DOL has the right to review and inspect those records if and when they choose.
Stage 3: Filing the online PERM application. Form ETA 9089 application for permanent labor certification, or PERM, is filed online with the U.S. DOL through their PERM website. The ETA 9089 asks for a great deal of detailed information about the company, the job position, prevailing wage, advertising efforts, and the employee who is being sponsored. The information must be accurately and carefully entered. Errors, even typos, can cause DOL to deny an application.
Stage 4: A DOL analyst at the Atlanta Processing Center reviews the application and makes a decision based on the information, advertising and other factors. Current processing time is about 5-6 months. At present, DOL is issuing approvals for cases filed in November 2017. Once a PERM is approved (i.e. certified), the attorney should check the State Department’s visa bulletin to determine if the filing (“priority”) date is current on the waiting list. Most cases fall into either the 2nd or 3rd preference categories. Each category has its own waiting list. Happily, for about the past year, both categories have been “current”, which means that a green card is readily available and the employer and employee can file for the next green card stages right away including the I-140 petition and I-485 application for adjustment of status (or immigrant visa processing at the U.S. Embassy in Tokyo).
Audits: Instead of approving a PERM application, the DOL sometimes sends the employer an “audit” notice. The audit requests additional information or has specific questions. Sometimes, an audit simply asks if there were any resume responses to the advertising, and if so, why those applicants were not qualified for the job. Most cases are not audited.
Supervised recruitment: After an audit, DOL may instruct the employer to place new ads for the position, and DOL will monitor responses to those ads.
This is only a summary of the PERM procedure.