For many seeking work visas and employment-based green cards in the United States, the journey begins with obtaining a PERM labor certification from the Department of Labor (DOL). This process includes a critical PERM advertising phase to ensure fair employment practices. The primary goal is to verifry that hiring foreign workers doesn't disadvantage qualified U.S. job seekers.
Prior to submitting the PERM application, employers are mandated to rigorously adhere to specific recruitment steps for the available position. Navigating through the PERM advertising and recruitment process is often intricate, with stringent DOL regulations that must be meticulously followed. For comprehensive details on these requirements, visit the U.S. Department of Labor's Foreign Labor Certification page.
For both professional and non-professional roles, PERM advertising regulations stipulate comprehensive recruitment measures. This critical phase necessitates employers to attest to fulfilling all advertising and recruitment prerequisites as part of the PERM process.
Should the DOL have concerns regarding the adequacy or authenticity of the advertising process, it may trigger a targeted audit. Such audits can substantially hinder the processing timeline of an employee's work visa or green card application. While some audits are conducted randomly, diligently complying with the PERM advertising guidelines significantly decreases the likelihood of being selected for a targeted review. Adhering closely to these procedures is thus vital in ensuring a smoother progression of your employee’s immigration application.
PERM Advertising
Initiating the PERM recruitment and advertising process begins with a crucial step: determining the prevailing wage for the job position in question. This wage, as established by the Department of Labor (DOL), reflects the standard rate for a specific role within your geographic area.
It's essential to ensure that any salary displayed in your job advertisements aligns with or exceeds this prevailing wage. This aspect is particularly critical when it comes to the Notice of Filing, a key component of the PERM process. Displaying a wage lower than the prevailing rate can lead to compliance issues and affect the legitimacy of your PERM application. Therefore, adhering to the DOL's wage guidelines from the outset is vital in laying the groundwork for a successful PERM recruitment campaign
For more information on prevailing wage guidelines and other related programs, please visit the DOL's Prevailing Wage Information page.
Prevailing Wage Determination
PERM Advertising Process
For both professional and nonprofessional occupations, specific mandatory recruitment steps are essential to satisfy the Department of Labor (DOL) that a genuine effort has been made to fill the position with a suitable U.S. worker. These steps are designed to cover major employment-seeking avenues:
1. Placing a Job Order
-
State-Specific Placement: It’s crucial to place the job order with the SWA in the state where the job is located. For instance, a job in Texas, regardless of the employer's location, requires placing the order with the Texas SWA.
-
Duration of Job Order: The order must run for at least 30 consecutive days. To ensure compliance, extending this period slightly is advisable.
-
Post-Order Filing Timeline: After the job order's completion, there's a mandatory waiting period before filing the ETA 9089 form. For example, a job order from January 1st to January 31st necessitates waiting until March 3rd for filing.
-
Record Keeping: Maintain printed evidence of the SWA job posting as part of your PERM documentation.
2. Advertisements in Newspapers & Professional Journals:
-
Sunday Newspaper Ads: Place an ad in two Sunday editions of a local newspaper with the highest circulation in the job's location.
-
Rural Area Consideration: If there's no Sunday edition, use the most widely circulated newspaper available.
-
Ad Requirements: The ad must include your business name, application instructions, and an overview of the position. Ensure the ad gives a clear picture of the job requirements.
3. Internal (in-house) Job Posting
Posting Duration: An internal job posting, or Notice of Filing (NOF), must be visibly posted at your company's physical location for 10 consecutive business days. Union positions require notification to the union representative. NOF Requirements: The NOF should inform employees of the PERM Labor Certification process underway, offering them the chance to submit relevant documentary evidence. Essential NOF Content: It must include your business name, job description, wages, and contact details for resume submission.
Key Considerations for NOF
-
Critical Step: Overlooking this step can jeopardize your application.
-
Legal Assistance: Collaborating with an immigration lawyer ensures compliance and thorough execution.
Common Reasons for PERM Denial due to NOF Issues
-
Omission of Basic Information: Employer’s name, position's wage, or job location.
-
Recruitment Report Errors: Failing to record NOF posting dates.
-
Missing Certifying Officer Address: Not including the address of the overseeing officer.
-
Inconsistencies with ETA 9089: Job requirements or details not matching those on the ETA 9089 form.
4. Additional PERM Ad Requirements
On top of the above requirements, an employer can choose a combination of any 3 additional recruitment methods outlined below to meet the additional recruitment requirement for professional positions
-
Job Fairs: Participating in relevant job fairs.
-
Company Website Ads: Posting on the company’s website, with screenshot records.
-
External Job Search Engines: Using platforms like Monster.com or Indeed.com.
-
On-Campus Recruiting: Applicable for positions not requiring extensive experience.
-
Trade or Professional Organizations: Advertising in relevant journals or publications.
-
Private Employment Firms: Keeping contracts and correspondence.
-
Employee Referral Programs: Offering incentives like bonuses or vacation days.
-
Local College Campus Placements: Advertising through campus placement offices.
-
Local and Ethnic Newspapers: Targeting newspapers in the job’s area.
-
Radio and Television Ads: Keeping records of contracts and payments.
It is important to note that each of these ads can have a PERM advertising duration of any length of time whether it be just one day or several. The choice is up to you. However, you must wait at least 30 days after the end of your ad campaigns to file your ETA 9089 form. Because of this, it is often advisable to run the job order, notice of filing, and all ads as concurrently as possible to avoid unnecessary delays.
Non-Professional PERM Advertising Requirements
For non-professional positions in the PERM process, the requirements are somewhat streamlined. Employers need to fulfill only two key steps: placing a job order with the State Workforce Agency for a duration of 30 days, and publishing the job advertisement in two consecutive Sunday newspapers. This approach ensures that a wide range of potential applicants can be reached effectively.
PERM Requirements for EB2 Green Cards
For EB2 green card sponsorship, the PERM Labor Certification is often a prerequisite. However, exceptions exist under specific circumstances, such as when an applicant can self-petition through a National Interest Waiver (NIW). This waiver allows exemption from the standard job offer and PERM requirements when the applicant's enterprise is deemed significantly beneficial to U.S. society, economy, or culture. To successfully obtain an NIW, the applicant must convincingly demonstrate that the usual PERM process would not serve the national interest. EB2 green card applicants considering an NIW should consult with their immigration lawyer to understand the necessary steps and qualifications.
For a detailed overview of the EB2 category and more information about the National Interest Waiver, please visit USCIS’s official page on Employment-Based Immigration: Second Preference EB-2.
PERM Recruitment after Advertising
Following the advertising phase, the employer's duty is to conduct interviews with candidates who meet the job requirements, including U.S. citizens. In cases where U.S. citizen applicants are not selected, the employer must document valid, non-discriminatory reasons for this decision in the recruitment report. The entire recruitment process, including advertising, should be completed within a 180-day window prior to filing the labor certification application and concluded at least 30 days before submitting the ETA 9089 form. Given the intricacies involved in PERM recruitment and advertising, seeking guidance from an immigration attorney is advisable to ensure adherence to all necessary procedures and regulations.
Documents Required from the Employer – PERM Recruitment Report
Throughout the PERM recruitment process, employers must maintain comprehensive paper documentation. This includes keeping copies of resumes, applications, and recruitment reports, especially during the interview phase.
Key Elements of the PERM Recruitment Report
The recruitment report is a crucial document that details the number of hires and specifically, the U.S. workers not selected for the position. It's important to provide detailed reasons for the non-selection of U.S. applicants, ensuring these are sufficiently clear for any potential audit. The Department of Labor's primary aim is to verify that no U.S. worker is unfairly displaced by a foreign worker. Detailed and accurate documentation in the recruitment report is vital, particularly regarding the reasons for rejecting U.S. worker applications.
Additionally, employers should meticulously record all correspondence, contracts, and payment receipts related to ad campaigns. This serves as proof of efforts made to find qualified U.S. job applicants. Furthermore, it's crucial for the information in your PERM recruitment report to align perfectly with the details on the ETA-9089 form and the Notice of Filing displayed in your workplace.
Boundaries When Rejecting U.S. Workers
When considering U.S. worker applications, employers must have legitimate and lawful reasons for rejection. This includes assessing whether the applicant could perform the job with a reasonable amount of on-the-job training. Employers should avoid scenarios where excessive training for fundamental job skills is required. Evaluating each candidate's suitability requires careful judgment, and consulting with a qualified attorney is advisable for guidance.
Tips to Reduce the Chance of a PERM Audit
With approximately 30% of PERM applications subject to random audits by the DOL, following these tips can help minimize the risk:
-
Adhere strictly to all job advertising requirements.
-
Collaborate with a qualified immigration attorney for accurate paperwork and submission.
-
Keep thorough records of all recruitment efforts, including candidate resumes and applications.
-
Document digital evidence, such as printing screenshots of ads on your website.
Potential PERM Audit Triggers
Certain factors can increase the likelihood of triggering a PERM audit:
-
Protests or layoffs by the employer.
-
Positions requiring less than a Bachelor's Degree, or roles requiring a degree but no experience.
-
Trade-related occupations.
-
Re-submissions of denied applications within the same year (for supervised recruitment).
-
Employers operating public schools.
-
Familial ties between the employer and employee.
-
Job requirements that deviate from industry norms.
How the PERM Advertising Process Affects Audits and Supervised Recruitment
The PERM advertising process is integral to the application's success and can significantly influence the likelihood of an audit. Typically, employers are required to keep detailed records of all advertisements and applicant rejections, compiling this information into a recruitment report for the DOL. Despite thorough documentation, there’s a possibility of being audited due to random selection or issues in the report. Factors that might trigger a targeted audit include insufficient evidence for rejecting candidates, incorrect ad placement, inability to pay the prevailing wage, or familial ties with the foreign beneficiary. An audit can extend the processing time by 9 to 18 months, making compliance with advertising guidelines crucial.
Supervised Recruitment
In some cases, employers might undergo supervised recruitment, especially if issues have arisen in previous PERM processes. Under supervised recruitment, a Certifying Officer (CO) assigned by the DOL reviews each document as ads are placed and candidates are interviewed. If supervised recruitment is initiated after your recruitment efforts, it may require restarting the process under the CO’s guidance. This step is generally taken due to serious concerns about the accuracy or legitimacy of the recruitment report or documentation. It underscores the importance of precise adherence to PERM guidelines from the outset.
PERM Denial
Denial of a PERM application can occur due to various reasons, including mistakes on the ETA 9089 form, inadequate supporting documentation, or violations of PERM advertising guidelines. In the event of a denial, two main options are available:
-
Motion to Reconsider: Submitting new evidence or justifying the absence of crucial information at the time of initial filing.
-
Request for Review: An appeal where the case is reviewed by the Board of Alien Labor Certification Appeals (BALCA) for an unbiased decision. In dealing with a PERM denial, consulting with a PERM attorney is essential to explore these options and navigate the complexities of immigration law effectively.