An application for Labor Certification, known by the acronym PERM (Program Electronic Review Management) is often the first of three steps required by an employer who wishes to sponsor a foreign national employee for permanent resident status. This post will provide some background and general explanation for the PERM process. We anticipate more posts in the coming months to explain some of the detailed processing issues that are of interest to employers and individuals working through the PERM process.
In most instances, the "green card processing" involves three steps:
- A U.S. employer wanting to hire a foreign worker on full-time permanent basis, files a PERM application with the U.S. Department of Labor Employment and Training Administration (DOL-ETA) for certification;
- Upon certification, the U.S. employer files an I-140 Immigrant Petition for Alien Worker with the U.S. Citizenship and Immigration Services (USCIS, fka INS), an agency of the U.S. Department of Homeland Security; and
- Upon approval of the I-140 petition and upon availability of a visa number, the foreign worker files an I-485 Application to Register Permanent Residence or Adjust Status.
Only by successfully completing all three steps, the foreign worker will become a Lawful Permanent Resident of the United States, or "will have a green card."
The PERM application satisfies the statutory requirement that the U.S. employer demonstrate that there are no U.S. workers who are able, willing, qualified, and available to perform the work being given to the foreign worker and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. This last requirement has been interpreted to mean that the position must be offered at the "prevailing wage" as determined by the DOL.
In order to demonstrate a shortage of U.S. workers, the employer must actively recruit in good faith for a minimum of 30 days for the position being offered to the foreign worker and attest to paying the foreign worker at or above the prevailing wage before the PERM application can be filed.
For a typical professional position (i.e., engineer, accountant, software application developer), the required recruitment process includes the following: two print ads in the local Sunday newspaper, 30-day posting on the state Job Order, and posting in three additional sources, such as employer’s web site, Internet job posting site and campus placement offices. The employer must choose three recruiting media from a list of 10 options. The employer must also give notice of filing of PERM application to a bargaining representative or to the employer’s employees at the location of the employment through posting for at least 10 consecutive business days.
During the recruitment process, the U.S. employer must actively recruit in good faith any U.S. workers who may be able to fill the position being offered to the foreign worker. As such, any U.S. applicants who are rejected during the process must be rejected for lawful job-related reasons. Although the regulations require a test of the labor market, there is no requirement that a qualified candidate actually be offered the position. This dichotomy highlights the tension between the requirement for good faith recruiting to merely test the labor market, and not actually fill the position (which presumably has already been filled by the foreign national).
If the employer determines that no qualified U.S. worker can be found, the employer then files a PERM application. Upon review by the Certifying Officer (CO), the application may be certified, audited, or denied. If audited, the CO will typically request documentation of the recruitment process. Another likely request during the audit is the showing of business necessity for requiring certain level or type of education or experience. The CO may also may require a supervised recruitment, in which case, the employer will have to conduct another round of recruitment.
If the PERM application is ultimately denied, the employer may choose to file a motion to reconsider with the CO or appeal the CO’s decision to the Board of Alien Labor Certification Appeals (BALCA). If the appeal is denied by BALCA, review can be sought in federal court. Published BALCA cases therefore provide guidance to employers and counsel regarding the nuances of the PERM requirements, interpretations of the regulations, and practical considerations to navigate the labor market test in support of the permanent resident application.