Program Electronic Review Management,
or “PERM” as it is more commonly known, is the system and process used
to obtain labor certification from the U.S. Department of Labor prior to
seeking most employment-based green cards. In these cases, Labor
Certification is the first step for an employer seeking to hire a
foreign national employee on a permanent basis, and who is petitioning
for employment-based immigrant status (“green card”) on the employee’s
behalf. The types of employment usually involve the PERM process include
advanced degree specialty occupation and professionals jobs (most IT
and engineering professionals, and also other licensed processionals
such as architects and attorneys) but unskilled jobs also requires the
PERM process to be completed. The following information focuses on the
PERM process and not the immigration petition with USCIS that follows to
complete the petition for the employee.
Process Overview
Obtaining PERM or Labor Certification is a complex process that involves several steps that typically lasts between 6-10 months.
The sequence of steps is:
- The employer provides employer and nature of employment information to the attorney, including a detailed job description,
- The attorney reviews the job description and employer’s qualification requirements, and compares them with the Department of Labor’s job description and qualification requirements for the job to ensure that the employer has given the correct job title or job description,
- The employer attempts to fill the position by posting the job opening in Sunday newspaper classified ads and other accepted methods of recruitment appropriate for the type of job (see below for detail)
- The employer reviews job applications and qualifications of candidates and, if appropriate, engage in the interview process,
- The employer makes conclusions about each applicant,
- The employer registers for a PERM account with the U.S. Department of Labor, if there isn’t one already, then prepare a multi-page PERM application that includes listing all recruitment efforts, and submit electronically.
The Recruitment process
Before submitting the PERM application, the employer must attest to the following:
- The job offer is for a bona fide (good faith) position,
- The job offer meets the minimum prevailing wage requirements (see below for detail),
- The offer does not adversely affect the working conditions and environment of U.S. workers (US citizen, permanent resident and specially authorized aliens such as asylees or refugees who meet the requirement),
- There are no qualified U.S. workers available to fill the position
This requires that the employer advertise
the job opening in two consecutive Sunday classified ads with a
newspaper of general circulation and one 30-day job order with the
appropriate State Workforce Agency (in California it is Cal Jobs of the
EDD). When the position is a professional position requiring an advanced
degree, the employer may substitute the second Sunday job advertisement
with a job listing in a printed trade journal dedicated to that
profession, and must recruit in three additional advertising medium.
Wage Determination
Wage Determination is another complex
process, in the PERM filing process. The employer must obtain a
prevailing wage for the job. The prevailing wage is requested from the
Department of Labor electronically. Since January 4, 2010, the national
Prevailing Wage is determined by the National Prevailing Wage and Center
(NPWC) in Washington D.C. Alternately, the employer may access
legitimate wage survey data (criteria set forth in the Code of Federal
Regulations). NPWC responds with information about wages for similar job
descriptions in the same geographic area and the wage level. It also
references the wage survey used to determine the wage. After the
prevailing wage for the subject position is determined, the employer
must promise to pay this wage or higher to the foreign national
candidate.
This prevailing wage determination
process and employer attestation ensures that hiring a foreign national
will not displace otherwise qualified U.S. workers.
However, obtaining the prevailing wage
stumps many legal professionals, as it requires knowledge about
applicable U.S. Codes of Federal Regulations and the Immigration and
Nationality Act, coupled with real-life experience that comes from
filing many PERM applications and for different types of professionals.
For example, an entry level unlicensed architect in California
(typically called a “designer”) will almost always not be offered the
prevailing wage set forth in the Department of Labor’s database, a
typical go-to source for wages, for such a position. This might leave an
inexperienced attorney representing an architect employer (who relies
on the Department of Labor’s job database) in a quandary as to what may
be done for the job opening that the employer needs to fill. Our office
has successfully obtained prevailing wages that satisfy the architect
employer’s actual wage schedule, using an alternative survey conducted
and published by the American Institute of Architects, which typically
reflects more accurately the median wage offered in the applicable area
in which the employer operates.
If you are an employer looking for an
experienced professional to handle the PERM process to help you fill an
open position, the Law Office of Alison Yew has the experience and
know-how to work through the process timely and effectively.
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