Program Electronic Review Management (PERM)
In most instances, a foreign national seeking to obtain U.S. permanent residence through employment must be the beneficiary of a certified permanent labor certification issued by the U.S. Department of Labor (DOL). A certified labor certification is filed by the employer using ETA Form 9089, Application for Permanent Employment Certification, through the DOL’s Program Electronic Review Management system or PERM. The immigration lawyers in our Michigan office have prepared many applications utilizing this process. The purpose of obtaining a certified labor certification is to ensure that there are no sufficient U.S. workers able, willing, and available and qualified to accept the job opportunity, and that the employment of the foreign national will not displace U.S. workers or adversely affect the wage or working conditions of U.S. workers. The labor certification application requires the prospective employer to test the labor market by conducting a pattern of recruitment to determine whether there are any qualified and available U.S. workers who are immediately available to accept the offered position at the prevailing (or average) wage for the geographic area. An outline of the process for filing a labor certification application, follows.
First, the U.S. employer is required to obtain a prevailing wage determination (PWD) from the DOL, which is based upon the job offer, job duties, requirements for the position, and the geographic area in which the job is located.
After obtaining a PWD, the employer is required to post a printed, internal
job notice for at least 10 consecutive business days. This notice must be posted
between 30 and 180 days before filing the labor certification application. In
addition to the job posting, the employer must use its standard in-house
electronic and printed methods for advertising the position. Additional required
recruitment efforts include placing a job order with the State Workforce Agency
(SWA) and placing two Sunday newspaper advertisements. The SWA job order must be
placed for a period of 30 days. The Sunday newspaper advertisements must be
published in a newspaper of general circulation in the area of intended
employment. The ads must be published within 180 days, but no less than 30 days
before filing of the labor certification application.
Additional recruitment requirements apply to employers seeking to hire
someone in a professional occupation (one that requires a bachelor's degree or
higher). If the occupation qualifies as professional, the employer must
undertake three additional recruitment steps to those outlined above. The three
additional steps must be chosen from the list provided in the regulations. The
following are permissible recruitment options for professional positions: (a)
job fairs; (b) the employer's website; (c) job search website other than the
employer’s; (d) on-campus recruiting; (e) professional or trade organizations
(i.e., placing an advertisement in their newsletter or journal); (f) private
employment firms that conduct recruitment; (g) an employee referral program that
provides incentives; (h) campus placement offices; (i) advertisement in local
and ethnic newspapers; (j) radio and television advertisements; and (k) web-page
advertisements that are posted in conjunction with one of the mandatory print
advertisements. All three additional recruitment options must take place no more
than six months before the filing of the labor certification application;
however, only one of the three steps may take place within 30 days of filing.
In order to prepare the advertisements, care must be taken to draft an
accurate description of the job as well as the skills, education, and experience
required to satisfactorily perform the duties. The advertised requirements for
the position must meet two criteria. First, the skills, education, and/or
experience must be the actual skills, education, and/or experience required to
satisfactorily perform the duties of the position. In other words, one cannot
require certain skills or experience simply because the foreign national
possesses those skills or experience. Second, the foreign national must have
possessed the required skills, education, and/or experience prior to joining the
employer who is filing on his or her behalf.
In establishing the duties to be performed by the foreign national, one must
generally follow the DOL guidelines for different occupational categories. These
guidelines determine the amount of education and experience that can be required
for a given occupation. Requirements that exceed the range established by the
DOL are considered "unduly restrictive," meaning that the sole function of these
requirements is to reject U.S. workers who are otherwise qualified for the
position. An employer, however, may require experience and education in excess
of the range established by the DOL by showing "business necessity," which means
that the requirements bear a reasonable relationship to the occupation in the
context of the employer’s business and are essential to performing, in a
reasonable manner, the job duties as described by the employer.
After the advertisements and job orders are placed, the employer may receive
resumes from interested applicants and a determination is made whether there are
any qualified and available U.S. workers who are willing to accept employment at
the prevailing wage. Upon completing the review and evaluation of the submitted
resumes, and before submitting the labor certification application, the employer
is required to prepare a recruitment report for its internal files. The report
must document the recruitment steps undertaken and the results achieved. The
employer must retain the recruitment report and all supporting documentation,
including evidence of the advertisements and the resumes received in response to
the recruitment effort, for a five-year period starting from the date of filing
the labor certification application.
If the employer determines that there are no qualified and available U.S.
workers for the offered position, then the recruitment has been completed and
the Labor Certification Application, Form ETA-9089, can be submitted
electronically. If the application is not selected for an audit, DOL will
certify (approve) it within approximately 4 to 12 months from filing. A
certified application must be immediately signed by the employer who will then
submit the certified and signed application along with the immigrant petition
(I-140) to U.S. Citizenship and Immigration Services (USCIS) to sponsor the
foreign national for an immigrant visa.
If an application is selected for an audit, the employer will receive an
audit letter from the Certifying Officer (CO) of DOL asking the employer to
provide certain documentation and specifying a reply date of thirty days from
the date of the audit letter. If the reply date is not met or if the CO does not
provide the employer with an extension, then the application will be denied. An
audit can be triggered randomly or based on information provided in the
employer’s PERM application.
If the PERM application is certified and the employer wishes to proceed to
the next step - filing the employment-based immigrant petition (Form I-140) with
USCIS, the foreign national will be required to provide documentation to
establish that he or she met the advertised requirements for the position on the
date that the PERM application was filed. Accordingly, the foreign national will
be required to provide copies of college degree(s) with transcripts and
employment confirmation letters that discuss their position and duties with a
particular company where they are or were employed and the skills used in
carrying out these specific duties.
To file the immigrant petition, the employer must also establish that it has
the ability to pay the foreign national at least the prevailing wage as
determined by the PWD. To meet this threshold requirement, the employer must
provide copies of its corporate tax returns or an audited financial statement
for the year when the labor certification was filed and subsequent years. If the
employer has over 100 employees, the USCIS may accept a letter from the employer
certifying that it has the ability to pay the proffered wage.
The immigrant petition must be filed within 180 days of the date that the
PERM application is certified.
We would be happy to discuss the PERM process as it relates to your
organization and/or a foreign national seeking to obtain permanent residence
through an employment-based immigrant petition.
The Law Firm of Antone, Casagrande & Adwers, P.C. helps individuals and businesses worldwide with all of their US immigration needs including employment visas, obtaining green cards for business and corporate employees and family members, visas for doctors, nurses, therapists, and other health care workers, together with waivers for physicians under J visa training program, labor certifications (PERM), national interest waivers, marriage-based adjustments and green cards, fiancee visas, family immigration preferences, students, naturalization and citizenship, including medical waivers, asylum, deportation, hardship waivers, voluntary departure and removal. We serve clients in southeast Michigan including the Detroit Metro area, Ann Arbor, and Lansing. With offices in Farmington Hills, MI, we are close to Southfield, Troy, West Bloomfield, Birmingham, Novi, Rochester and Auburn Hills in Oakland County; Canton, Plymouth, Dearborn, and Detroit in Wayne County; Warren, Sterling Heights, and Mount Clemens in Macomb County; Brighton and Howell in Livingston County; Lansing in Ingham County; City of Monroe in Monroe County, Ann Arbor in Washtenaw County; Grand Rapids in Kent County; Battle Creek in Calhoun County; Kalamazoo in Kalamazoo County; Benton Harbor in Berrien County; Holland in Ottawa County; Flint in Genesee County; Ludington in Mason County; Muskegon in Muskegon County; and Traverse City in Grand Traverse County, Michigan. Although many of our clients are located in the tri-county area of Wayne, Oakland and Macomb, we also serve clients in many cities and states in the U.S. including Cleveland, Toledo and Cincinnati, Ohio; Chicago, Illinois; Milwaukee and Green Bay, Wisconsin; Indianapolis, Indiana; Buffalo, New York; Los Angeles, San Francisco and San Diego, California; Phoenix and Tucson, Arizona; Dallas, Houston, El Paso and Galveston, Texas; Miami, Florida; Washington D.C.; Virginia, Minnesota, Pittsburgh and Philadelphia, Pennsylvania, and many others. In addition to the United States, we also serve Canadian nationals from numerous provinces in Canada, including Toronto and Windsor in Ontario; Montreal in Quebec; Halifax in Nova Scotia; and Vancouver, British Columbia. We also serve cities and countries such as London, England; Scotland and other countries of the United Kingdom (U.K.); Mexico, Paris, France; Frankfurt and Berlin, Germany; Tokyo, Japan; India; Brazil; Rome, Italy; Shanghai and Beijing, China; Belgium; the Philippines, and many other countries in Europe, Asia and South America.