PERM (Program Electronic Review Management) Processing refers to a process that the U.S. Department of Labor uses to issue a Labor Certification (LCA) to a U.S. employer. This LCA is the first step in a series of steps which allows a U.S. employer to hire a non U.S. citizen to work permanently in the U.S.
The gist of PERM processing is establishing that sufficient U.S. citizens are not able, qualified, willing, and available to work at the particular job as desired by the U.S. employer, and that the employment of a non U.S. citizen will not adversely affect the wages and working conditions of similarly employed U.S. workers. Therefore, obtaining a Labor Certification Application (LCA) from the DOL is the first step in the process of obtaining an employment-based Legal Permanent Residence (often known as "Green Card").
PERM Processing involves three crucial Steps which must be understood by any employer willing to hire a non U.S. citizen permanently, and by the non-U.S. citizen employee who wishes to work in that capacity:
STEP 1: PREVAILING WAGE DETERMINATION
The first step in PERM processing is the request by a U.S. worker to the DOL that the DOL makes a prevailing wage determination. The application required for this request is Form ETA 9141. This application provides DOL with information about the job offered to the foreign worker, the requirements of that position, the job duties of that worker, and the work site location. The DOL analyzes this information, and issues a Prevailing Wage Determination to the U.S. employer. Similar to a temporary work visa or the H-1B, this determination by the DOL states the minimum salary that the foreign worker must be paid for the specific job and the specific location for which the U.S. employer filed the Form ETA 9141.
STEP 2: ADVERTISEMENT
Once DOL has come out with its Prevailing Wage Determination, the second step is advertisement and recruitment. This is often the most time consuming process in the entire PERM Process and requires significant work by the U.S. employer, the foreign worker, and immigration attorneys. This is the step which demonstrates to the DOL that there is no able, willing, qualified, and available U.S. worker who is willing to accept the job opportunity which the U.S. employer has offered to the foreign worker.
A U.S. employer must genuinely seek to hire U.S. workers for this position, which often translates into advertising the particular job opportunity through at least six different forms of media. Further, out of these six forms, three forms are required, and the other three may be chosen from a list of ten different options. The required media options are:
1. The job announcement or the advertisement must run for 30 days on the State Workforce Agency (SWA) website of the state where the job opportunity is located
2. The job announcement or the advertisement needs to run on two consecutive Sundays in a newspaper of general circulation in the area of intended employer
3. Finally, a notice needs to be posted about the job opportunity for ten consecutive business days at the U.S. employer's place of business.
Additionally, the employer needs to advertise through at-least three of these ten other methods:
1. Job Search Website
2. Employer's Website
3. Job or Career Fair
4. On-campus recruiting
5. Posting the job with a Trade or a Professional Organization
6. Posting the job with private employment firms or recruiters
7. Posting the job through an employee referral program which includes identificable incentives
8. Posting the job opportunity with a campus placement office
9. Local and Ethnic newspapers which are appropriate for that particular job
10. Radio and television advertisements
NOTE: The U.S. employers should ideally place all these advertisements at the same time or as close to each other as possible. Immigration laws require these advertisements to be less than 180 days old at the time of filing the PERM application.
Also, the U.S. employer must respond to any queries to these advertisements promptly and appropriately. Consult an immigration attorney as to the appropriate response and screening of potentially qualified applicants required to fulfill U.S. laws.
STEP 3: SUBMITTING ETA FORM 9089
Once the recruitment and advertising period is complete and there are no U.S. workers who accept the job opportunity, the U.S. employer may submit the Form 9089 to DOL for Labor Certification. This form is usually submitted electronically to DOL's website, and it takes several months (7-9) for DOL to adjudicate this petition. After adjudication, DOL may approve, deny, or audit the application. Auditing the PERM involves asking the U.S. employer to provide additional evidence on the application which will allow DOL to review and approve or deny the application.
NOTE: A certified PERM is valid for six months. Make sure that your employer files for a I-140 immigrant petition during this period. Also, DOL does not permit any amendment, modification, or correction on a pending or approved PERM, therefore, make sure that you consult only an expert immigration attorney to help you navigate this process.
DOL requires that ALL attorney fees, costs for filing, and the costs for preparing PERM (which include the costs for advertisement) must be paid by the U.S. employer.
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