What Is A PERM Labor Certification?
The Department of Labor (DOL) issues permanent labor certifications that allow employers to hire foreign nationals to work and live in the U.S. permanently. Generally, before you can submit Form I-140 to petition USCIS, you must receive a certified labor certification from the DOL’s Employment and Training Administration (ETA).
The certification signifies to USCIS that:
- There are not enough U.S.-based workers willing, available, or qualified to accept the position.
- Employing a foreign national for the role will not negatively affect the compensation or conditions of similarly employed workers in the United States.
How Do You Apply for PERM?
The recruitment period is generally the most challenging part of the PERM process. Otherwise, the PERM application process is relatively straightforward.
Generally, the PERM Labor Certification process includes the following steps, but is not limited to:
- Conduct required recruitment efforts at least 30 days but not more than 180 days before submitting a Labor Certification application.
- Submit the PERM application (Form ETA 9089) electronically or by mail.
- The Department of Labor certifies that the applicant holds skills currently unavailable in the U.S. workforce and that the role doesn’t adversely affect current U.S. workers. This step can take five to six months unless audited (more on this later).
- The employer must file an immigrant petition with USCIS before the Labor Certification expires.
Eligibility Requirements for a Labor Certificate
The Department of Labor is tasked with approving PERM applications that are in the best interest of the U.S. With that in mind, listed below are a few basic requirements you must meet when applying:
- The employer must hire a full-time employee.
- It must be a permanent job. Part-time and seasonal roles don’t qualify.
- The job requirements must be “reasonable” and align with similar roles. All job requirements must be shown to be a necessity for business operations.
- The employer must pay the employee 100% of the “prevailing wage” or more.
The prevailing wage is essentially the average wages of individuals currently employed in the selected occupation. If you’re unsure of the average salary, you can check online by accessing the Department of Labor’s wage statistics.
Understanding the PERM Process
You can submit PERM applications online or by mail. Generally, it’s recommended that you do so electronically as it allows for faster processing. Once submitted, the DOL conducts an anti-fraud check to ensure the employer is legitimate and currently employs workers.
In most cases, the PERM application is approved automatically, but sometimes the DOL PERM processing center selects applications for audits. So long as it’s not denied or audited, the DOL’s goal is to approve applications within 60 days. However, it generally takes much longer.
Options After PERM Denials
There are two main ways to appeal a PERM denial
- A Request for Reconsideration can be filed with the Certifying Officer who denied the case within 30 days from the date of the denial letter.
- File a Request for Review with the Board of Alien Labor Certification Appeals (BALCA). The Request for Review must be filed within 30 days from the date of the denial letter.
What You Should Know About PERM Audits
A PERM audit is a request for additional documentation about recruitment practices. The DOL audits PERM applications based on several unpublished factors and random quality control checks.
If audited, you must respond within 30 days. Generally, you can expect a decision within four months of your response.
When facing a PERM audit, employers must produce proof of the recruitment efforts they took to find a U.S.-based employee. That can include, but is not limited to:
- Job postings in specific outlets (i.e., Newspapers, job boards, etc.).
- Recruitment reports summarizing the recruitment process undertaken by the employer.
- Documentation of all applicants that applied and why they were not selected for the role.
How can my business immigration lawyer help me respond to a PERM audit?
PERM audits are all about thorough documentation. An Atlanta business immigration lawyer can work with the sponsoring employer to gather the correct documentation, prepare recruitment reports, and submit a timely PERM audit response to DOL.
Working with an immigration attorney can help you avoid unnecessary delays or denials in the process.