What is PERM?
PERM is the first step taken towards the filing of Green Card application. In most instances, before the U.S. employer can submit an immigration petition (I-140) to the USCIS, the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA).
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.
How to file an application for permanent labor certification?
PERM labor certification process involves following steps.
A. Pre filing steps –
- Request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC)
- Placing ads and recruitment
- 30 days wait period
B. File labor certification application –
- File Application for Permanent Employment Certification, ETA Form 9089
C. Post filing Tasks –
- DOL makes a decision
- Audits or requests for information
A. Pre filing steps –
- Request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC) –
- Prior to filing ETA Form 9089, the employer must request and obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC).
- All requests for prevailing wage determinations (PWDs) must be filed on the national Application for Prevailing Wage Determination, ETA Form 9141, and filed with the National Prevailing Wage Center (NPWC).
- DOL will process PWDs on a first-in-first-out (FIFO) basis. In its FAQ, DOL encourages requestors to submit their ETA Forms 9141at least 60 daysbefore the PWD is needed.
- The employer is required to include on the ETA Form 9089 the NPWC provided information: the prevailing wage, the prevailing wage tracking number, the SOC (O*NET /OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
2. Placing ads and recruitment –
Once PWD is obtained employer should move on to the recruitment process.
With exception to optional special recruitment, rules for college and university professors, DOL rules for recruitment fall into two categories. –
Mandatory recruitment activities-Minimum set of recruitment activities is required for all PERM applications (both professional and nonprofessional occupations)
- 30 days job order with State workforce Agency (SWA) serving the area of intended employment.
- Two Sunday print advertisements in a newspaper of general circulation. The Sunday newspaper ads must contain the following content:
- Name of the employer
- Instructions for applicants on where to send resumes
- A description of the job that is specific enough to apprise applicants of the position,
- Indication of the geographic location of the job, and any travel requirements, if applicable.
- Notice of filing of an application for permanent alien labor certification to be posted at the proposed job site for a period of 10 business days. If the position is unionized, the employer must provide notice of filing directly to the appropriate union representative.
B. The selection of the additional recruitment activities is required only for professional occupations.
In addition to the mandatory recruitment requirements, employers filing PERM applications for professional occupations must further select three additional recruitment activities from DOL’s list, which includes following ten options.
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertisements
Advertising Requirements:
Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must contain:
- Name the employer;
- Occupation appropriate instructions for how applicants should apply for the position
- Description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
- No wage rate lower than the prevailing wage rate;
- No job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
- No wages or terms and conditions of employment that are less favorable than those offered to the alien.
Timing of recruitment advertisements –
One of the most important tasks is to comply with all of the recruitment timing requirement
- 180 day rule– The employer must complete recruitment activities- including 30 day SWA job order, 10 day notice of filing and the 30 day quiet period within no more than 180 day starting on the very 1stday of recruitment and ending on the day you file the employee’s PERM application.
- 10 day notice of filing– Unless the position is unionized the employer must post the notice of filing for 10 consecutive business days.
- 30 day SWA job order –employer must post its SWA job order for at least 30 days.
- Expiration date on prevailing wage determination– DOL issued PWD for a specific period of between 90 and 365 days- after which the determination expires.
Recruitment Report –
The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides 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, however, if requested by the Certifying Officer, the employer must submit the resumes.
3. 30 days wait period –
After completing all recruitment activities, the employer must allow potential applicant an additional 30 days to respond to any recruitment activity. Effectively, this 30 day wait period immediately following the last day of recruitment.
B. File labor certification application –
- Application. The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker’s qualifications.
- Signature requirement. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.
C. Post filing Tasks –
- DOL makes a decision
Depending upon the nature of the program, the process for filing could vary between months and years. The process to obtain an employment based permanent labor certification can sometimes take up to several months after completing the necessary recruitment steps and filing the application with the National Processing Center. To be of assistance, DOL has provided the PERM Processing Times, which are updated monthly, for view at https://icert.doleta.gov.
- Audits or requests for information
Supporting documentation may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
Retention of records –
The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
PERM Labor Certification approved. What’s next?
Once PERM is approved, employer or agent can file immigration petition form I-140 with USCIS.
Sources –
AILA’s Guide to PERM Labor Certification
Permanent Labor Certification Details, available at –
