In this installment of our attorney Q&A series, we’ve enlisted Karen Gillespie, an attorney from Global Immigration Associates (Envoy’s exclusively affiliated law firm) to answer common PERM process questions, collected from the attendees of our recent How to Master the Green Card Process webinar.
What is PERM Labor Certification?
PERM is the process through which an employer tests the labor market to show the Department of Labor (DOL) that there are no available and minimally qualified U.S. citizens or legal permanent resident workers for the sponsored role. It involves requesting a wage determination issued by the DOL, a period of mandatory recruitment and a review of any applications. The company will then submit the Application for Employment Certification Form ETA 9089 attesting that it adhered to the labor test and affirming that it could not find any available and qualified workers. If a qualified worker is found, the labor test fails and the ETA 9089 cannot be filed.
Do we need to hire a candidate if we find that he or she qualifies?
If the PERM process yields a qualified U.S. citizen or legal permanent resident you are not required to hire them, but it means that you can’t file the ETA 9089 because you haven’t proven that your company is unable to fill the role with a U.S. worker.
Can the employee be required to pay back the costs of the PERM process if they leave the company before a certain time?
Absolutely not. The PERM process must be paid in full by the employer and cannot ever be paid back by the employee. Federal immigration regulations do allow the employer to contract with the employee to repay other aspects of immigration costs if they voluntarily terminate their employment, but this depends on state law regarding contracts. You should discuss those possibilities with an employment/labor attorney in your state.
If resumes are submitted after the 30-day cooling-off period, are we required to consider them up to the day we file the PERM application?
Because the PERM process is, at its core, designed to be a good faith attempt by the employer to find a qualified U.S. worker, an employer should review any resume received from when recruitment begins to when the PERM application is filed.