When seeking an employment-based U.S. green card, most foreign workers must rely on the U.S. employer to successfully navigate and complete the PERM labor certification process. The requirements of the PERM process are extensive and specific culminating in filing ETA Form 9089 with the U.S. Department of Labor (DOL). The successful completion of the PERM process is critical to the foreign worker obtaining the sought after U.S. green card. Unfortunately, there are several common PERM mistakes that jeopardize this.
One of the most common mistakes employers make is actually easy to not only avoid, but also to remedy. Far too many employers fail to review ETA Form 9089 prior to submitting it through the DOL online portal. Because employers do not double check the information provided in the form prior to submission, the form ends up being submitted with errors and incorrect information. Once submitted, the only way to correct the application is to withdraw the entire thing and refile it. This can cause substantial delays. In more extreme cases, inconsistent information provided in ETA Form 9089 can draw suspicion from the DOL and eventually lead to denial of the PERM application without audit.
Another common PERM mistake made by employers involves the recruitment process mandated by the PERM process. The requirements regarding the advertisement of the job opportunity are specific. The advertising guidelines must be strictly adhered to or the DOL will deny the ETA Form 9089. One of the more common mistakes involving advertising requirements relates to the requirement that an employer place advertisements for the job position in two Sunday newspapers of general circulation in the area of the job opening. Many employers think that two ads must be placed, but only one needs to be in a Sunday paper. Both ads need to be placed in Sunday papers of general circulation. If this is not completed, the DOL will deny any submission of the ETA Form 9089.
The work for the employer does not end after the ETA Form 9089 is electronically submitted to the DOL. After submission, the employer receives an email from the DOL at the address provided in the form. In this email, there will be a link with a questionnaire that is simply requesting confirmation that the employer knowingly filed ETA Form 9089. The questionnaire also seeks confirmation that the form submission was not due to something like a computer hacker or spam. Employers may think that submitting the ETA Form 9089 is the end of the process and, thus, will overlook the email from the DOL. The employer, however, must complete this questionnaire. Failure to complete the questionnaire within seven days of receiving it will result in the DOL denying the case.
In addition to completing the questionnaire emailed by the DOL after the ETA Form 9089 submission, an employer has a continuing responsibility to retain all documents associated with the PERM at their office location for no less than five years. At a minimum, the employer is required to retain the prevailing wage determination along with all original advertisements placed for the job position. The employer must also retain any resumes that were received for the job position.
Immigration Law Attorneys
For all of your PERM questions, come to the knowledgeable attorneys at Nachman, Phulwani, Zimovcak Law Group, P.C. We will help you comply with all of the PERM certification requirements and answer any questions you may have along the way. Contact us today.