PERM

PERM: Labor Certification, Green Card

• One of the most commonly used avenues for obtaining U.S. Permanent Residency (i.e., a "green card") through employment is through the PERM Labor Certification process.
• In general, this process requires a U.S. employer to offer a foreign national a permanent, full time, job, and to "sponsor" the individual by fiilng this type of case. 
• The key part of this process is the recruitment process, by which the U.S. employer must undertake a recruitment process, conforming to specific requirements, in order to establish that there are no U.S. workers to fill the position which is being offered to the foreign national.  This is what is known as "Labor Certification".  (Other detailed requirements and rules apply).
• This process is available for most types of jobs; however, there are certain jobs which do not qualify because the law deems that there are sufficient U.S. workers to fill those jobs, as a matter of law.

If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

According to the Labor Department:

No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.

According to the Labor Department:

In submitting a PERM application, the employer declares that it has read and reviewed the application and that the information contained in the application is true and accurate. The employer is responsible for ensuring the PWD information provided by the SWA and entered on ETA Form 9089 is correct and for taking steps to obtain corrected PWDs from the SWA as needed.

We are aware there have been some issues with Prevailing Wage Determinations (PWD) provided by some SWAs, such as incorrect SOC codes or validity periods. Currently, we are working with all SWAs to ensure the new regulation and state requirements are clearly understood and implemented.

To address denials based on SWA errors during the first months of implementation of the PERM regulation, the Department has developed the following option for employers. If you have an application that was denied due to an error associated with an incorrect or incomplete PWD, and the application was submitted before March 25, 2006, you may submit a request for review to the appropriate Certifying Officer. The request for review must include a copy of the corrected PWD provided by the SWA or a copy of the initial PWD obtained from the SWA together with an explanation of how it should be corrected.

Does the use of an electronic national professional journal satisfy the advertisement requirement under the college and university teachers' special recruitment and documentation provision?

According to the Labor Department:

No, use of an electronic national professional journal does not satisfy the optional special recruitment provision's advertising requirement. The employer must use a print publication.

According to the Labor Department:

Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.

According to the Labor Department:

Yes, an employer may specify alternative experience or qualification requirements, provided the alternative requirements and primary requirements are substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner. As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg.

NOTE: Even when the employer's alternative requirements are substantially equivalent, but the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the alien's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable.

Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

According to the Labor Department:

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?

According to the Labor Department:

Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision. The attestation provision of the PERM regulation requires the employer certify that the offered wage equals or exceeds the prevailing wage determined pursuant to the prevailing wage provision which, in turn, requires the employer to obtain a prevailing determination from the SWA having jurisdiction over the proposed area of intended employment.

According to the Labor Department:

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

According to the Labor Department:

Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.

According to the Labor Department:

The employer must file, as part of its labor certification application, documentation the alien meets one of three requirements: the alien has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

According to the Labor Department:

Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the alien's qualifications meet the provision's requirements.

According to the Labor Department:

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

According to the Labor Department:

Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to a National Processing Center.

According to the Labor Department:

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?

According to the Labor Department:

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

According to the Labor Department:

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

According to the Labor Department:

For purposes of determining whether the alien gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

According to the Labor Department:

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.