Last Updated on March 2, 2023
Before the PERM recruitment process may begin, you must provide the foreign worker’s job description, which includes information about the foreign worker’s offered position – specifically the job title, minimum job requirements (education, experience and/or skills), and duties to be performed.
The Department of Labor (DOL) has put into place a fraud unit with the intention of rooting out inconsistencies in job requirements for the same position. The DOL is expected to audit employers who do not consistently recruit with the same requirements for the same job position. For example, the DOL will look into why an employer has filed two PERM applications for the same software engineer position, but one position requires a master’s degree while the other only requires a bachelor’s degree.
TIP: Use the same PERM job descriptions for all your PERM cases. Do not change your company’s job description to cater to individual foreign workers. If you have any questions about how to draft a job description, please visit DOL’s O*Net website.
TIP: Make sure that your foreign worker can actually produce documentation and evidence to show that he or she meets the job requirements. Some employees have trouble getting their diplomas or experience letters to validate their qualifications.
WARNING:
Supervised recruitment: If the DOL suspects that recruitment was not done in good faith after reviewing an audit, the DOL may tag the employer for supervised recruitment to re-test the labor market. Supervised recruitment is a very burdensome and arduous process that makes obtaining lawful permanent residence status for your foreign national very difficult.
PERM cases will be tagged for supervised recruitment if there have been known layoffs, or employers have failed to respond to the DOL’s audits in the past.
Currently, data mining shows that some employers are routinely not responding to audits. Such employers will be required to file under supervised recruitment in the future.
Stage 1 of the PERM Recruitment Process: Prevailing Wage
A prevailing wage determination must be requested from the DOL. The employer will be required to pay 100 percent of the prevailing wage by the time the employee attains permanent residency.
TIP: Generally, the DOL’s prevailing wage determination will be issued within six to eight weeks of submission.
The employer may submit a third-party wage survey to the DOL either as part of its request for a prevailing wage determination or in response to an agency’s determination. Any survey that is proposed to be used for this purpose must be reviewed by the attorneys prior to submission, as it must meet strict criteria.
Prevailing wage determinations are subject to expiration dates (the DOL may give an expiration anywhere from 90 days to one year from the date of issuance). For a determination to be used in support of a PERM application, either: 1) recruitment must commence before the determination’s expiration, or 2) the PERM application must be filed before the determination’s expiration.
Section A: Instructions on Creating DOL PERM Account
All PERM labor certification applications are filed online with the DOL. For full instructions, please reach out to your Envoy contact or post a message for your attorney in the Envoy Communication Center.
Section B: Instructions on Creating Job Order Account
In anticipation of the PERM recruitment process, the employer should create a Job Order Account for the purpose of completing the Mandatory Job Order posting. This is a registered employer account created with the website or job bank designated by the State Workforce Agency with jurisdiction over the work site.
TIP: The steps for creating a Job Order Account vary widely by state. Some states require contact by e-mail, fax or telephone in lieu of creating the account online. Some states do not require the creation of a Job Order Account in order to post a job opening. If you have any questions regarding this item, please do not hesitate to ask your immigration attorney for assistance.
Section C: Instructions on Providing Business Necessity Documentation
In certain cases, your attorney may request Business Necessity Documentation for a case in the PERM recruitment process. These are cases in which your attorney has determined that the minimum educational and/or experience requirements for the position being certified exceed what the U.S. Department of Labor believes to be the “industry average” requirements for a position. The employer must be able to justify why the minimum requirements for the offered position exceed the industry average for some reason pertaining to the employee’s reasonable performance of the job duties and the context of the employer’s business.
Documents that generally support a Business Necessity argument include, but are not limited to:
- The employer’s official job description for the position (to confirm the requirements are indeed the employer’s actual, minimum requirements for the position)
- Copies of “normal,” (not related to the PERM recruitment process) recruitment for the position
- The resumes of other employees in the same position (to confirm that all other employees have met these requirements)
- Printouts of job postings from job search websites, such as CareerBuilder.com, for similar positions with other companies
- An expert opinion letter confirming that the requirements are normal
For more information on the PERM process, watch our webinar, Surviving PERM Labor Certification, on-demand.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-retained attorney or another qualified professional.
