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Navigating The PERM Labor Certification Process

Knowledgeable Legal Help For The PERM Process

Program Electronic Review Management, or PERM, as it is more commonly known, is the system and process used to obtain labor certification from the U.S. Department of Labor prior to seeking most employment-based green cards. In these cases, Labor Certification is the first step for an employer seeking to hire a foreign national employee on a permanent basis, and who is petitioning for employment-based immigrant status (“green card”) on the employee’s behalf.

The types of employment usually involve the PERM process include advanced degree specialty occupation and professionals jobs (most IT and engineering professionals, and also other licensed processionals such as architects and attorneys) but unskilled jobs also requires the PERM process to be completed. The following information focuses on the PERM process and not the immigration petition with USCIS that follows to complete the petition for the employee.

There Are Several Complex Steps

Obtaining PERM or Labor Certification is a complex process that involves several steps that typically lasts between 6-10 months.

The sequence of steps is:

  • The employer provides employer and nature of employment information to the attorney, including a detailed job description.
  • The attorney reviews the job description and employer’s qualification requirements, and compares them with the Department of Labor’s job description and qualification requirements for the job to ensure that the employer has given the correct job title or job description.
  • The employer attempts to fill the position by posting the job opening in Sunday newspaper classified ads and other accepted methods of recruitment appropriate for the type of job (see below for detail).
  • The employer reviews job applications and qualifications of candidates and, if appropriate, engage in the interview process.
  • The employer makes conclusions about each applicant.
  • The employer registers for a PERM account with the U.S. Department of Labor, if there isn’t one already, then prepare a multi-page PERM application that includes listing all recruitment efforts, and submit electronically.

What Are The Recruitment Requirements?

Before submitting the PERM application, the employer must attest to the following:

  • The job offer is for a bona fide (good faith) position.
  • The job offer meets the minimum prevailing wage requirements (see below for detail).
  • The offer does not adversely affect the working conditions and environment of U.S. workers (US citizen, permanent resident and specially authorized aliens such as asylees or refugees who meet the requirement).
  • There are no qualified U.S. workers available to fill the position.

This requires that the employer advertise the job opening in two consecutive Sunday classified ads with a newspaper of general circulation and one 30-day job order with the appropriate State Workforce Agency (in California it is Cal Jobs of the EDD). When the position is a professional position requiring an advanced degree, the employer may substitute the second Sunday job advertisement with a job listing in a printed trade journal dedicated to that profession, and must recruit in three additional advertising medium.

How To Determine Wages

Wage Determination is another complex process, in the PERM filing process. The employer must obtain a prevailing wage for the job. The prevailing wage is requested from the Department of Labor electronically. Since January 4, 2010, the national Prevailing Wage is determined by the National Prevailing Wage and Center (NPWC) in Washington D.C. Alternately, the employer may access legitimate wage survey data (criteria set forth in the Code of Federal Regulations). NPWC responds with information about wages for similar job descriptions in the same geographic area and the wage level. It also references the wage survey used to determine the wage. After the prevailing wage for the subject position is determined, the employer must promise to pay this wage or higher to the foreign national candidate.

This prevailing wage determination process and employer attestation ensures that hiring a foreign national will not displace otherwise qualified U.S. workers.

However, obtaining the prevailing wage stumps many legal professionals, as it requires knowledge about applicable U.S. Codes of Federal Regulations and the Immigration and Nationality Act, coupled with real-life experience that comes from filing many PERM applications and for different types of professionals. For example, an entry-level unlicensed architect in California (typically called a “designer”) will almost always not be offered the prevailing wage set forth in the Department of Labor’s database, a typical go-to source for wages, for such a position. This might leave an inexperienced attorney representing an architect employer (who relies on the Department of Labor’s job database) in a quandary as to what may be done for the job opening that the employer needs to fill. Our office has successfully obtained prevailing wages that satisfy the architect employer’s actual wage schedule, using an alternative survey conducted and published by the American Institute of Architects, which typically reflects more accurately the median wage offered in the applicable area in which the employer operates.

Ask About PERM In Your Consultation

If you are an employer looking for an experienced attorney to handle the PERM process to help you fill an open position, our law firm has the experience and know-how to work through the process timely and effectively. To arrange your initial complimentary consultation, please contact our law offices online or by telephone at 408-389-4764.