The PERM (Program Electronic Review Management) labor certification is the first step for many employers seeking to hire foreign workers on a permanent basis.
Administered by the U.S. Department of Labor (DOL), the PERM program ensures that employing foreign workers will not have a negative effect on the job prospects, income, and working conditions of U.S. citizens who are qualified, available, and willing to accept the job.
To obtain PERM certification, employers must demonstrate that they were unable to find any qualified U.S. workers for the position after conducting extensive recruitment efforts.
They must also show that hiring the foreign worker will not affect the wages and working conditions of U.S. workers in similar positions.
Meeting the PERM requirements can be complex, but understanding the process is key for employers seeking to hire foreign talent.
This article provides an overview of the PERM labor certification and calls attention to various challenges employers and employees may face in seeking this certification.
PERM Labor Certification Eligibility Criteria for Employers and Foreign Workers
Employers seeking PERM labor certification must meet strict regulatory requirements set forth by the DOL. First, they must clearly describe the duties and responsibilities, educational requirements, training, experience, special skills, and other qualifications for the offered position.
This includes providing a detailed breakdown of the minimum and ideal credentials needed to perform the job adequately. Additionally, employers must establish that the offered position is permanent and full-time rather than seasonal, intermittent, or temporary.
They must also prove they can pay the proffered wage from the time the PERM application is filed until the foreign worker lawfully becomes a permanent resident. This includes supplying evidence such as annual reports, tax returns, or official payroll records.
The wage offered to the foreign worker must be in line with or higher than the prevailing wage rate for similarly employed U.S. workers in the same geographic area. To determine this wage, employers must get a Prevailing Wage Determination from the SWA or State Workforce Agency prior to filing the PERM application.
Employers must also conduct structured recruitment efforts to locate potentially qualified U.S. workers before filing. This includes placing a job order with the SWA serving the area where the job is located for at least 30 days.
Employers hiring for professional positions must also advertise in a national professional journal and carry out three additional recruitment steps, such as using job search websites, on-campus recruiting, or advertisements on TV, radio, or in local newspapers. Extensive documentation of all recruitment efforts must be retained.
In addition to meeting regulatory standards, employers must establish that they have enough funds available to pay the wage offered from the time the application is filed until the foreign worker attains permanent residence.
They must also demonstrate a genuine need to hire a full-time, permanent foreign worker for the role rather than using the position to test the labor market or substitute labor.
Eligible foreign workers sponsored for permanent residence through PERM labor certification should possess all the minimum qualifications for the offered position at the time recruitment begins.
This includes having the required education, work experience, training, special skills, and licenses mandated by the employer to perform the role’s duties adequately.
Those being sponsored for EB-2 green cards under the advanced degree or exceptional ability categories may also need to provide further proof of their credentials through previous academic records, patents, publications, or other evidence demonstrating expertise above what is normally encountered in their field of endeavor.
Role of the U.S. Citizenship and Immigration Services
Once the Department of Labor certifies the PERM application, the employer must submit Form I-140, also known as the Immigrant Petition for Alien Worker, to the U.S. Citizenship and Immigration Services (USCIS) within 180 days.
USCIS adjudicators carefully review PERM labor certification applications to ensure the employer has met all regulatory requirements.
USCIS may issue Requests for Evidence (RFEs) if the employer fails to establish that the job opportunity is a permanent, full-time position or that the foreign worker meets all the minimum requirements. Applications may also be denied if there are inconsistencies between the PERM certification and the I-140 petition.
Common reasons USCIS denies PERM applications include errors in recruitment procedures, unlawful rejection of U.S. workers, failure to adequately notify workers’ unions, and inability to demonstrate the foreign worker was fully qualified at the time recruitment began.
PERM Labor Certification Challenges and Considerations
Despite the benefits of securing permanent residence for highly skilled foreign workers, both employers and employees face hurdles when navigating the often complex PERM process.
For employers, challenges include bearing the full cost of mandatory newspaper advertisements, job fair participation, and legal fees associated with preparing PERM applications.
Employers may also struggle to establish that their recruitment efforts were conducted in good faith if audited. DOL auditors may request additional documentation or conduct interviews with company staff to verify no qualified U.S. workers were refused consideration.
Additionally, delays resulting from PERM audits or appeals can stall the permanent residency process. Since PERM certification must be obtained before filing Form I-140 petitions, recruitment do-overs are common if applications are denied.
For foreign workers, the PERM process can also mean prolonged separation from family members left abroad. PERM requires beneficiaries to maintain valid nonimmigrant status before changing to permanent resident status. Dependents may be unable to join the main applicant or obtain work authorization while awaiting approval.
Gaining Approval with Pride Immigration
Pride Immigration’s team has extensive experience in guiding clients through the labor certification and permanent residency processes. We handle every PERM-related requirement, from preparing recruitment documents to responding to post-filing audits and requests for evidence.
Our personalized approach considers each client’s unique objectives to develop targeted immigration solutions. Contact us today at (703) 594-4040 or online to learn how our skilled legal team can help make your PERM labor certification application smoother and more likely to succeed.
Beeraj Patel, Esq.
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