LABOR CERTIFICATION: THE PERM GREEN CARD PROCESS
The PERM green card process exists to protect skilled U.S. workers from displacement by less-skilled foreign workers. Companies must prove that they took reasonable measures to first fill an open position with a U.S. based worker.
This multi-step PERM green card process typically takes 10 to 12 months and is required for both EB-2 and EB-3 green cards. PERM certification must be completed prior to filing for a green card, so it is recommended that HR professionals thoroughly understand what’s involved to avoid any potential delays.
The PERM green card process contains a variety of steps, but can be split into two stages:
TIP: Two years after an employee’s start date is when Envoy recommends HR professionals begin considering workers for green card sponsorship. Holding off longer than two years puts employees at risk of reaching their max-out dates and having to leave the United States before they obtain their green card – which could leave employers with a labor gap in a hard-to-fill position.
STEP 1 – PREVAILING WAGE DETERMINATION
Immigration law requires employers to pay foreign workers at least the prevailing wage once the foreign national receives his or her green card. To determine the prevailing wage, the employer’s existing job description must be sent to the Department of Labor’s website. A DOL inspector will analyze the duties, skills and requirements associated with the job, and respond with its determination as to the appropriate salary for the specified work and location.
PERM JOB DESCRIPTION TIPS
- Avoid industry specific jargon;
- Focus on one role instead of multiple interdepartmental responsibilities;
- If the job description is unclear, the DOL inspector may request additional information, leading to delays;
- If the job description is too technical, the inspector may issue the highest wage determination, requiring the employer to increase the salary or rewrite the job description.
TIP: Generally, the DOL’s prevailing wage determination will be issued within two months. The employer may submit a wage survey to the DOL as part of its request for prevailing wage determination. The survey must be reviewed by attorneys to ensure it meets the DOL’s strict criteria for currency and regional specificity. Prevailing wage determinations are also subject to DOL expiration dates.
STEP 2 – PERM RECRUITMENT
The job recruitment aspects of the PERM process must be completed precisely to help create the case for why a foreign worker is needed.
Completing the job order stage quickly is also important, as none of the advertisements can be older than 180 days at the time of filing the labor certification. A job order announces the availability of an open position to registered, unemployed workers in the state where the work is to be done.
There are several recruitment advertisements that must be placed by the employer and each of these advertisements requires special details. The required recruitment advertisements are:
- One (1) job order placed with a state workforce agency;
- Two (2) Sunday advertisements in a newspaper of general circulation in the area of intended employment;
- One (1) internal posting notice;
- Three (3) additional advertisements from a predetermined list of options.
PLACING A JOB ORDER WITH A STATE WORKFORCE AGENCY
- The job order must be placed in the state of intended employment and run for 30 consecutive calendar days;
- While most job orders are placed via an online portal through the state’s workforce agency, posting methods vary, so familiarize yourself with your state’s requirements;
- The next steps cannot be completed without proper documentation and proof of this particular job advertisement.
Good news! All 50 states offer some form of online posting method for job orders. Envoy recommends printing and retaining proof that the job order ran as required for at least five years after the PERM process concludes.
SUNDAY NEWSPAPER ADVERTISEMENTS
Two separate ads must be placed in a Sunday edition of a local newspaper. The ads may run in consecutive weeks as long as they’re documented.
Each ad must include:
- Name of the employer;
- Method in which applicants should submit resumes;
- A description of the job requirements and basic duties;
- Job location and other travel requirements.
INTERNAL POSTING NOTICE
Employers are required to alert their current employees if they are filing for labor certification and actively recruiting to fill the particular role.
Notification of the posting must be communicated across all normally used recruitment channels and must be physically posted for at least 10 consecutive business days and contain the job title, duties and requirements. It must also contain specific language as mandated by the DOL.
Internal responses to the posting, along with all additional applications and/or resumes received, should be documented and saved for at least five years. You may need them down the line should the DOL request them during an audit.
Known as the cooling-off period, once all job postings are completed, employers must wait at least 30 days before moving to the next step in the PERM process. This gives the U.S. job market time to respond to any advertisements.
ADDITIONAL JOB ADVERTISEMENTS
Employers must choose three additional advertising options to complete the recruitment stage of the PERM process. The most common options chosen for these advertisements are:
- Placing the ad on the company’s website;
- Placing the ad with a job-search site (e.g., LinkedIn, Monster, CareerBuilder, etc.);
- Offering an employee referral program.
To simplify the process, it’s acceptable to reuse the language in the ad previously placed in the Sunday newspaper advertisements.
No time requirement exists for the posting these additional job ads. However, recommended runtime is at least 10 consecutive calendar days to avoid any issues in processing.
It is also important to be meticulous about documenting all resumes and applications received and retain proof of all advertisements placed for at least five years.
Keep a report that details all steps taken throughout the recruitment process to assist in the event of a DOL audit.
PERM GREEN CARD FILING PROCESS
Once all steps in the recruitment stage have been completed, it is time for the PERM green card filing process. The PERM application is ready for filing by submitting the Permanent Employment Certification form, ETA 9089, via the DOL website.
The ETA 9089 includes:
- Standard information about the job duties, requirements, location, prevailing wage, etc.;
- The employer’s detailed recruitment process and all necessary documentation of its completion per PERM guidelines;
- Supporting information regarding the foreign national as the leading candidate to fill the role.
Current processing time is typically 4 to 6 months.
Following submission of the ETA 9089, the PERM application may be approved, audited or denied.
30% of PERM filings are audited. Safeguard against PERM issues by contacting Envoy for information on how our proprietary and specialized PERM process can help organize, manage and monitor all aspects of the certification process. Call us at (855) 847-2669 or visit us at www.envoyglobal.com/about-us/contact.
To learn more about green cards, download our Comprehensive Green Card Guide.
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.