UNDERSTANDING THE PERM RECRUITMENT PROCESS IS THE FIRST STEP IN ENSURING A STREAMLINED EXPERIENCE FOR FOREIGN TALENT
Employers are increasingly using green card sponsorship to attract and retain high-skilled foreign talent at their organizations. Depending on the employment-based permanent residency strategy and foreign national qualifications, employers may first need to proceed through the PERM labor certification process.
There are several steps to this process, and this blog post will provide a high-level overview of PERM recruitment and how employers can best navigate it.
THE INS AND OUTS OF THE PERM RECRUITMENT PROCESS
What is a green card?
Before diving into PERM, it's helpful to first understand green cards. Foreign nationals who obtain a green card are known as lawful permanent residents (LPRs). Once this status is achieved, they can live and work in the U.S. on a permanent basis.
Many foreign nationals first arrive into the U.S. via a nonimmigrant visa, such as the H-1B or L-1. Once sponsored on an employment-based nonimmigrant visa, employers commonly offer to start the green card application process. Some employers start the process immediately, while others may choose to wait for a specific milestone in an employee's tenure.
As the green card process starts, foreign national employees may qualify for an employment-based green card, such as:
- EB-1 Priority Workers
- EB-2 Advanced Degrees
- EB-3 Skilled Workers
More information about the different green card categories, be sure to read our ABCs of Green Cards guide.
What is PERM labor certification?
The U.S. government typically requires PERM labor certification for the EB-2 and EB-3 green card categories. When PERM is required, employers complete this process through the U.S. Department of Labor.
The PERM process is the first step in the three-step permanent residency process. It includes the PERM labor certification filed with the DOL (first step), Immigrant Petition (Form I-140) filed with U.S. Citizenship and Immigration Services (second step) and Application to Adjust status (Form I-485, aka green card application) filed with USCIS (third step).
The purpose of the PERM labor certification process is to test the labor market to ensure there are no minimally qualified U.S. workers available to perform the job, and employers must engage in a bona-fide effort to fill an open position with a U.S.-based worker.
THE PERM PROCESS TYPICALLY TAKES 10-11 MONTHS, AND IT INVOLVES MULTIPLE STAGES
Stage 1: Prevailing Wage
Employers must provide the DOL with basic information about the position before recruitment begins. This information includes:
- Job title and job duties
- Job requirements
- Location(s) of jobs
- Any travel requirements
During this stage, employers and foreign nationals can take certain steps while obtaining a prevailing wage determination that will work for future parts of the PERM process. For instance, employers should ensure a foreign national can provide evidence of required skills and experience. This can be proven with letters from prior employers.
Additionally, employers can use requirements that are usual for the company and not tailored to a specific foreign national's background or skills.
First, employers must create a PERM account with the DOL. Next, they need to create a state job order account.
Employers should keep in mind the prevailing wage determination, which must be requested from the DOL, who usually issues the determination within four months of filing. Additionally, employers must pay 100% of the prevailing wage upon approval of the green card application.
Stage 2: Recruitment Activities
The second stage is known as recruitment, which is conducted solely by the employer and immigration counsel. There are four types of recruitment activities, and employers must prepare them in compliance with DOL regulations. The four recruitment activities include:
Two Newspaper Advertisements
Newspaper ads must be posted on two Sundays (may be consecutive).
Employers must display the job order for at least 30 consecutive calendar days. A screenshot or physical printout is the preferred documentation.
Internal Notice of Filing
The internal notice of filing must be posted for 10 consecutive business days.
Three additional discretionary forms
A list of acceptable options include:
- TV/radio ads
- Job fairs
- Job search websites
Stage 2: Resume Review
Employers now must review employment applications. During this process, if an employer disqualifies an applicant, the reasoning must be in accordance with disqualifications from the DOL. These guidelines are:
- Failure to meet minimum requirements Inability to perform the core job duties
- Failure to attend a scheduled interview
- Disinterest in the job
- Unwillingness to accept offered wage
- Bad work references
- Lack of proficiency in English language
- Applicant does not have permanent employment authorization
Stage 3: ETA Form 9089
After successfully completing stage two, employers can submit ETA Form 9089. This form includes standard job information about the following:
- Job duties
- Prevailing wage
- Employer/company information
- Summary of all labor market test activities
- Summary of foreign national employee's qualifying education and employment history
Timeline for Adjudication of ETA Form 9089
The current processing time with the government is typically four to six months. Once an employer submits the ETA Form 9089, it will be certified/approved, audited or denied.
Keep in mind that the DOL retains the ability to randomly audit PERM applications. They do this to ensure compliance with detailed advertising requirements and proper disqualification of any U.S. applicants.
As you can see, the PERM labor certification process involves many steps and stages.
Originally published May 18, 2020.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.