Last Updated on March 2, 2023
For an employer, preparing for a PERM filing can be tricky.
A PERM Labor Certification is the first of a multi-step process to obtain an employment-based green card. Thanks to some of the detailed measures employers have to take in order to file, care and attention to the small nuances are key. Here are some tips on the PERM filing process:
PERM Filing: Before You Get Started
Filing a PERM LC for an employee requires that you recruit that employee according to the regulations set by the Department of Labor. Before recruitment can start, the employer has to provide a job description for the foreign worker, including the offered position, job title, minimum job requirements – like necessary skills, experience and education – and the duties expected to be performed in the position.
It’s helpful to use the same PERM job descriptions for all your PERM cases. It’s much more effective if you don’t change the job description to fit individual foreign workers. That said, make sure your prospective employee is able to provide the necessary documentation to prove that he or she is able to meet the job requirements; evidence like diplomas and letters of experience should be nailed down before the filing process begins.
Prevailing Wage
Before filing, you must authorize the prevailing wage with the Department of Labor. You’ll be required to pay 100 percent of the prevailing wage. Be sure to leave ample time for the prevailing wage determination, which can take up to six to eight weeks after the request is submitted.
Job Order
Only once the prevailing wage is determined, and the salary of the foreign worker is set to match that wage, can an employer start the PERM recruitment process. This starts with the job order. The job orderer is the job description, which must be posted online – on your website or a job search site OK’d by the State Workforce Agency – for at least 30 days.
Activities
When the job order has been posted, the recruitment documentation materials can be prepared for an advertisement and internal posting. The instructions for these items are included in each draft. If you change your mind on anything in these materials, be sure to run it by your attorney before beginning recruitment. It’s essential that the content of the job advertisements and posting meet DOL regulations.
It is possible to use the same materials used in a recent (within 180 days) posting for the same position. Again, these postings should be reviewed again to make sure they are up to DOL’s standards before filing the PERM labor certification.
Forms ETA-9089, I-140, I-485
At this point in the recruitment process, the Form ETA-9089 will be prepared for internal records to reflect the answers on the online PERM questionnaire. The employer will be required to show that they are able to pay the wage offered to the foreign employee with either an annual report, tax returns, pay statements, an audited financial statement or (for larger companies) a letter from a financial officer indicating that the company’s net income exceeds the offered wage.
The PERM process is detailed and can be tricky for employers. It’s not always possible to avoid an audit, but it is critical to be sure you have all your ducks in a row before filing. This will certainly help your chances of success.
For more info on PERM filing, see our complete PERM Instructions & Tips white paper.
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.
