A permanent Labor Certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA).

The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

What is PERM?

To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005. The PERM System i.e. Program Electronic Review Management System is a program developed by the Department of Labor to replace the then existing Employment based Labor Certification Application.

How PERM works?

The PERM procedures have been designed to expedite the Labor Certification process. It eliminated the two methods of processing viz. Regular and RIR (Reduction in Recruitment). PERM uses automated computer systems to scan attestation forms filed by employers regarding their compliance with all regulatory requirements. However, it is supposed to be a strict and rule-based system, requiring less paper work and cutting down on the time and formalities of collection of documents.

Are all applications covered under PERM ?

The PERM regulation came into effect from March 28, 2005 and is applicable only to applications filed on or after that date. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Elimination Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) are no longer accepted under the previous regulations. The new applications (ETA Form 9089) are needed to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and re-file the application for the identical job opportunity under the re-file provisions of PERM will a previously filed application be processed under the PERM regulation.

Filing of the application

The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications. Applications submitted by mail must contain original signatures. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

Prevailing wage determination

Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC /O* NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

Recruitment steps to be completed before filing

Employers are required to attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the labor certification application. The employer must recruit under the standards for professional occupations set forth in the regulations if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

Filing an application online

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

Conclusion

PERM is designed to streamline the labor certification process and reduce processing times. DOL anticipates adjudication of most cases filed under PERM within 45 to 60 days, unless there is a DOL audit and the employer is required to submit additional information, or certain cases may be subjected to supervised recruitment. Thus, it is important that all the statutory guidelines are complied with before filing an application under PERM.

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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult attorney.

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