United States: 5 Key Considerations When Initiating A PERM Labor Certification For Your Employee

Last Updated: June 12 2017
Article by Anna F. Angel

For most employers, sponsoring a foreign national employee for an employment-based green card requires filing a Program Electronic Review Management (PERM) labor certification with the U.S. Department of Labor (DOL). In simple terms, an employer's successful PERM labor certification demonstrates to the DOL that (1) the employer intends to pay the appropriate prevailing wage for the position in the geographical area, and (2) hiring a foreign national worker to fill the position will not adversely impact the U.S. labor market by displacing U.S. workers. Despite the seemingly intuitive nature of these two goals, the PERM labor certification process is anything but intuitive. In reality, the PERM process involves a set of technical, expensive, and highly time-consuming steps in combination with strict deadlines and complex strategies that extend over a period of typically six to eight months and, once approved, must remain effective well into the future.

As an initial matter, be aware that the employer must take on all the costs of the PERM process, which include legal fees and advertising costs. The DOL precludes employees from taking on any of the financial burden of a PERM application. Given the intense time and financial commitment required to successfully complete this first step of the green card process, employers must take time to understand key aspects of PERM regulations prior to commencing the arduous labor certification process. This article highlights for employers five crucial considerations. The timely and efficient success of an employee's green card application depends on an employer's understanding of these essential aspects of PERM regulations.

1.      Ensure the PERM labor certification will continue to be valid when the foreign national employee receives his or her green card, which could be many years from now.

An employer commencing the PERM labor certification process for an employee may find it useful to take a step back to visualize the ultimate expectation of the long process: The foreign national employee must perform the position, as set forth in the PERM labor certification, at the time the green card application is approved. Importantly, the time frame for certification varies greatly depending on the employee's country of birth and the type of position he or she will perform.

As background, on the PERM form (i.e., the Application for Permanent Employer Certification or ETA Form 9089), an employer must detail the job title, job duties, minimum requirements, worksite location, and salary for an offered position. A delicate dance ensues—the employer must establish the details of the employee's anticipated position, encompassing potential future changes to the role and the estimated time frame for green card issuance. The U.S. Department of State's Visa Bulletin, which changes on a monthly basis, allows legal counsel to determine approximate backlogs for green card issuance, which can vary greatly. As an example, for two employees whose countries of origin are India and Ghana, respectively, who perform work in the same advanced position, the Indian national will need to wait seven to nine years for green card issuance as compared to the employee born in Ghana, who will be eligible to move forward with a green card application immediately once the PERM application is certified.

How can a PERM labor certification continue to be valid years into the future with such extensive backlogs? Certainly, the PERM remains valid only for the "area of intended employment" specified in the labor certification, so an employee's relocation to a worksite outside the original area of intended employment will require a new PERM application. A change in job title or other ancillary, non-material changes do not, by themselves, impact the continuing validity of a PERM labor certification. Likewise, wage raises that occur with the passage of time after the PERM is filed do not impact the PERM's continuing validity.

The key factor in determining if a change in job duties will require a new PERM application is whether the foreign national employee is performing substantially all of the same duties listed in the PERM labor certification. Job duties that are tied to the requirements for the position are examined more closely. For example, if a duty that was the basis for the position's experience requirements is eliminated, the new job will be considered different and a new PERM will be required. Also, if significant managerial duties are added in the new position, a new PERM will be required. An addition of minor duties will not generally affect the validity of the PERM. For a high-performing employee from India who continues to be promoted while awaiting certification, the filing of a new PERM application might be inevitable.

Because a change in the duties, worksite, or other important details of a position can trigger the need for a new PERM application, a helpful practice is to set forth the details of the position on ETA Form 9089 such that the employee can progress naturally through the ranks of the company and still perform substantially the same role as the PERM position once a green card is issued. If the employer comprehends this key consideration, the business will be better positioned to save time and money and manage the expectations of foreign national employees.

2.      Be sure you can prove the ability to pay the offered, full-time salary from the date the PERM is filed until the employee obtains lawful permanent resident status.

For profitable, large companies with 100 or more employees, demonstrating the "ability to pay" the offered wage is generally quite simple. For small employers, however, that might operate at a loss for one year, it is essential to consider proper "ability to pay" evidence at the beginning of the PERM process. As background, the employer must list the employee's offered wage at Section G on ETA Form 9089, which must equate to at least the DOL-determined prevailing wage for the position. Importantly, the employer's duty to demonstrate its "ability to pay" the wage begins as soon as the PERM application is filed and continues until the green card is approved. As a practical matter, intense scrutiny of the employer's "ability to pay" arises when U.S. Citizenship and Immigration Services (USCIS) adjudicates the employer's I-140 petition, which is the next step of the green card process after the PERM is certified.

For all employers, the most straightforward way to demonstrate an ability to pay the offered wage is to simply pay the employee the offered wage or higher, as evidenced through W-2s and/or pay statements that are effective from the moment the PERM is filed. If the employer will not pay the offered salary from the PERM filing date forward, alternate documentation will be required. Generally, a large employer with 100 or more employees can evidence its ability to pay the wage through an annual report, U.S. Securities and Exchange Commission (SEC) Form 10-K, federal tax returns, audited financial statements, or a letter signed by the chief financial officer—all of which must reflect sufficient profits to pay the wage. 

3.      Stay vigilant regarding layoffs to U.S. workers, which can impede an employer's ability to file a PERM.

If an employer has performed any layoffs within the last four to six months or plans to commence layoffs in the next six months, it could pose serious problems for the PERM labor certification.

For a layoff to affect a PERM, the layoff must have occurred in the same area of intended employment as the PERM position and be in an occupation that is "related" to the PERM position. Furthermore, the laid-off employee must be a "U.S. worker" (namely, a U.S. citizen), lawful permanent resident (green card-holder), or an asylee/refugee. In order to move forward with a PERM where a layoff occurred affecting a U.S. worker in a related occupation in the area of intended employment within six months of the filing of the PERM application, the employer must provide documentation that it has notified all of the potentially qualified laid-off U.S. workers of the job opportunity and considered them. This complex and time-consuming analysis can be avoided if the employer is keenly aware of its layoff history and performs the analysis prior to initiating the PERM and commencing a costly recruitment campaign.

4.      Changes to the PERM position, such as promotions, salary raises, or new locations, can destroy a pre-filed PERM, requiring the employer to start the whole process over again.

It is important that the job duties, worksite, offered wage, and other details of the position remain consistent throughout the PERM labor certification process—from the prevailing wage determination on ETA Form 9141, to recruitment language, to ETA Form 9089. Just as changes to the PERM position that occur after the ETA Form 9089 is filed can impact the continued validity of the PERM, changes such as promotions or raises that occur during PERM preparation and pre-filing can also undermine a PERM application.

For example, if a PERM lists a position as "Environmental Engineer I" with an offered wage of $70,000 per year and the employer decides, prior to the filing of the PERM application, to promote the employee to an "Environmental Engineer II" role at an annual salary of $80,000, it could be argued that the offered wage, as advertised, is no longer valid at the time of filing. Despite the fact that the employer had the employee's best interests at heart, the PERM position was advertised at a lower wage than the wage in effect at the time the PERM was filed. One could argue that the $70,000 annual wage might have discouraged U.S. workers from applying, whereas the higher offered wage for the position—in effect prior to the PERM's filing—might have encouraged more resumes from U.S. applicants. This is a grey area of PERM compliance, but employers may be on more solid footing if they refrain from changing important details of the position throughout the PERM filing process.

5.      If qualified U.S. workers apply for the PERM position, the entire process must halt.

The purpose of the PERM labor certification process is to ensure that there are no U.S. workers who are able, willing, qualified, and available to perform the work to be undertaken by the foreign national employee and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. As such, the employer must embark upon the PERM process in good faith, acknowledging that it will review the resumes of all applicants who apply for a position as a result of the DOL's regulated recruitment campaign. If there are minimally qualified U.S. workers who would accept the position if it were offered to them, the PERM process cannot be continued. However, a new PERM process can be completely restarted after a six-month waiting period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions