The Program Electronic Review Management (PERM) is a system that allows people to get labor certification. Anyone seeking employee-based immigration in the United States must acquire this certification as the first step. There are specific steps in the PERM labor certification process and completing those steps at the appropriate timeframe is critical in securing a PERM Labor Certification.
Therefore, this article will discuss how to go about acquiring a PERM labor certification, allowing you to appropriately seek employee-based immigration/permanent residency in the United States.
The Background Process – Several Months for Filing
Applicants will have about 7 or 8 months from the moment they begin their case until the time when the PERM labor certification is filed with the US Department of Labor (DOL). All requirements must be met before the PERM Labor Certification can be filed with the US Department of Labor.
The Minimum Requirements for Qualifying for the Labor Certification
The requirements and duties of the applicant will have to be established first. Therefore, these requirements will be the basis for the PERM Labor Certification, and even minor irregularities can render the application useless. Thus, all job qualifications and requirements for the applicant must be accurate.
It is incumbent upon the employer sponsoring the employee-based immigration case to clearly define the job description and the experience and education the employee must have to qualify for the specific position. The sponsoring employer must ensure that the position's requirements meet the rule of the "actual minimum requirements" set forth by the DOL. Therefore, in setting forth the minimum requirements, any applicant will need to cover at least those requirements to perform the job competently—not in the best possible way.
If the employer has not performed this step already, it could take a few days to a week or possibly more to finalize these requirements with the DOL. The employer's availability and efficiency could ultimately determine how long this step takes.
More time may be spent in the process of confirming if the applicant meets the specific requirements set by the employer. Therefore, the applicant may have to acquire and provide educational documents, experience letters, and evaluate foreign educational credentials for the prospective employee. This part of the process may take up additional time, and it will again depend on the efficiency of the applicant and the sponsoring employer.
Why It Is Important to Obtain Prevailing Wage Before Recruiting
An employer can only file a PERM application after obtaining a prevailing wage determination (PWD) from the DOL. This essential part of the PERM labor certification process can take about 5 to 8 months. PWD aims to ascertain a minimum wage level that is needed for the position in question.
It is best to obtain a PWD before the recruitment process to minimize delays and finish the process within deadlines. The PERM labor certification will need to be filed during the timeframe that the PWD is valid. Therefore, the employer may have to start the PERM labor certification case again if it is unable to complete the recruitment process while the PWD is still valid. It is important, therefore, to understand that all recruitment processes have a limited time frame. That said, obtaining a PWD can occur during the recruitment process as well, but there is a risk of missing the deadlines and starting all over.
In addition to effectively avoiding delays by obtaining a PWD before the recruitment process, it is beneficial because it can reduce the potential hassle of the PERM labor certification process. Thus, errors in the PWD by the DOL do happen, and the fact that they can be provided weeks or months after application can become a problem. In that case, the employer may have to restart the recruitment process. The employer will then have to complete the recruitment process while the PWD is still valid. However, that can be not easy considering how long recruitment can take.
In some cases, the PWD is set higher than the employer had initially surmised. Therefore, the employer may have to restart the recruitment process to sponsor applicants at the new wage limit. Thus, the number of complications of obtaining a PWD during the recruitment process is significantly higher than obtaining it before initiating the recruitment process.
Requirements and Format for the Recruitment Process
The US Department of Labor has stringent regulations on the content and form of the sponsoring employers' recruiting efforts. The sponsoring employer must perform the following:
• use newspaper advertisements for the position; and
• make a posting in the job bank of the state labor department; and
• use 3 more types of recruitment allowed by the DOL (for professional positions).
In addition to the types of recruitment, the regulations by the DOL are also about the job advertisement's content. Employers must monitor every step of this process to identify and rectify any errors as soon as they may crop up. This way, it can prevent nullifying the PERM labor certification and restarting the case. It is important to understand that errors are likely to happen because the sponsoring employee must use the professional services of various types of agencies for the advertisements as well as for other parts of the recruitment process.
The DOL will only consider sponsoring the employer's recruitment as valid if the employer entertains and responds to all applications for the position. Appropriate methods must be in place for responding to applicants, which an attorney can provide. The whole PERM labor certification process can be denied if the employer does not follow the appropriate response methods for applicants. Thus, it is critical to acquire this information first.
The "Hold" or "Quiet" Period – 30 Days
The "hold" or "quiet" period is a necessary part of the recruitment process, and it lasts approximately 30 days. The period was created to allow the sponsoring employee to receive, review and consider more applications for the position after the initial recruitment process. Any PERM labor certifications that are filed before the 30-days "hold" period will be denied, and the entire case will have to be restarted.
The Employee and Employer Must Sign the ETA 9089 Form Under Penalty of Perjury
The employee and the employer must put their signature on specific parts of the ETA 9089 form under penalty of perjury. These parties can only perform this step after the ETA 9089 form is finalized, which can only happen after recruitment is completed.
It is critical that both parties (i.e., the employee and the employer), review the ETA 9089 form carefully for the PERM labor certification process before they sign it. Doing so will allow them to identify and address any discrepancies in the form. No corrections can be made to an ETA 9089 form once it's pending, so all errors must be addressed before signing.
Qualified US Candidate's Application Will Terminate the PERM
In most cases, the receipt by the employer of a qualified US workers' application will terminate the PERM. The employer will have to start a new PERM process after that.
The Processing Time for Filing PERM Labor Certification
There is no exact timeframe for the PERM labor certification process, as learned from history. That said, it is safe to estimate that filing for the PERM labor certification online is received in approximately 6 to 10 months if the DOL does not audit the PERM filing. The DOL emails the sponsoring employer a questionnaire for sponsorship verification within 30 days after the online application. The employer must fill and submit the questionnaire within the provided timeframe to prevent the DOL from denying the PERM case. Concerned parties can file a PERM case via paper mail, but the process is considerably longer than the online case.
The processing time for filing PERM labor certification will take more time than 6 to 10 months if the US Department of Labor audits the case. PERM cases are audited randomly, so concerned parties cannot expect or predict if their case will be audited, but they can prepare for it. The sponsoring employer will have 30 days to respond to the audit. Based on the priority date, the DOL reviews the case on a first-in/first-out basis after the DOL receives the audit response.
The Process Time During the Supervised Recruitment Process
The process that is established by the US Department of Labor to require sponsoring employers to engage in extra recruitment efforts supervised by the US Department of Labor is known as supervised recruitment. Only some cases are designated for supervised recruitment. Sponsoring employers have 30 days to submit a copy of the recruitment advertisement to the DOL. After that, the DOL may take weeks to months to approve the advertisement. After approval, employers must place advertisements in various media within 15 days. The recruitment period stays open for a minimum of 60 days after the first advertisement.
Sponsoring employers have 30 days (which is extendable to 30 days more) to submit a report of the recruitment process after it's closed by the DOL. The US Department of Labor will take a minimum of 30 days to process the PERM case. Employers should follow up with the DOL to ensure the processing time is as low as possible. Supervised recruitment, therefore, can add months to the entire PERM labor certification process because of a lack of standardized timeframes for the various steps.
The Process Time for a Request for Reconsideration
Sponsoring employers can submit a Request for Reconsideration, a document sent to request the US Department of Labor to reconsider the PERM case after a denial. Employers can only submit this application within 30 days after the PERM case has been denied. The processing time of this application can take longer than 30 days as many factors can delay the DOL from reviewing the case again.
Employers can appeal to the Board of Alien Labor Certification Appeals or BALCA if the DOL denies a Request for Reconsideration. The processing time for BALCA to make a decision typically takes a year. It's best to consult a qualified immigration attorney for viable options and strategies if the DOL denies the case because this part of the PERM labor certification process can take a significant amount of time.
If you should have any questions or need more information about the ways in which the U.S. Immigration and Nationality Laws may impact you, your family, your friends or your colleagues, please contact the U.S. Immigration and Nationality Lawyers at the NPZ Law Group – VISASERVE – U.S. Immigration and Nationality Lawyers by e-mailing us at info@visaserve.com or by calling us at 201-670-0006 (x104). You can also visit our Law Firm’s website at www.visaserve.com