Learn How to Petition a Foreign Employee Through a PERM
Program Electronic Review Management (PERM) is the system employed by the U.S. Department of Labor (DOL) to issue a Labor Certification (LC). The labor certification is required to a foreign national to work in the US sponsored by a US employer. This immigrant visa category is called employment based (EB) and leads to permanent residence in the US.
A permanent labor certification grants permission to an employer to hire a foreign worker to work in the United States on a permanent basis.
To petition a foreign employee through PERM, you will have to file the application as an employer. The first step is to request Prevailing Wage Determination (PWD) to the DOL. The DOL carries out checks to ensure that employers in the US do not reduce the wages, opportunities, and working conditions for native workers in the country. If a permanent labor certification application is granted by the DOL, as an employer, you are able to petition the employee to immigrate.
Nature of Job and Worker Qualification
In order for an employer to hire a foreign national to work in the US with a green card, there are several things that the employer must do. The employer needs to define a specific occupation. When sponsorship entails a PERM certification, you must define a particular job opportunity and list the minimum requirements of the job. The job opportunity cannot be vague, it must include:
- Minimum duties;
- Minimum education;
- Minimum experience.
The employer is required to advertise the job opportunity in the newspaper and other means and specify the job requirements.
Before the PERM application can be submitted, the employer is required to show why it is necessary to hire a foreign worker for the post. As the purpose of the Department of Labor is to essentially save opportunities for the US workforce, its objective is to ensure that proper opportunity was given to a US worker before proceeding to hire a foreign national. The ideal candidate should:
- Respond to the recruitment drive;
- Satisfy the minimum requirements for the position;
- Be able to perform the fundamental duties;
- Start employment within a reasonable period.
Therefore, in order to petition a foreign employee through PERM, you must define:
- The roles and responsibilities pertaining to the post;
- Minimum requirements, such as:
- Educational qualification;
- Training or Certifications;
- Work experience;
- Special skills.
- Geographical location of work;
- Number of employees in the same position at the site where the foreign national will work;
- Whether all existing employees in the same position meet the job requirements mentioned.
The PERM Labor Certification Process
Petitioning a foreign employee through PERM is one of the most common routes to obtaining a green card for a foreign worker. Here are the major steps involved:
Step 1: Define a Job Opportunity and Job Description
To petition a foreign employee through PERM, it is important to do your homework before you sponsor a foreign national to work in the United States. Determine a job description, minimum work requirements, and the recruitment process.
Make sure you address any potential issues that may crop up along the way. This step may sound simple, but it requires considerable research. It would typically take you a couple of months to finish this task.
Step 2: Obtain a Prevailing Wage Determination
Once your planning is intact, it is time to request a prevailing wage determination (PWL) from the DOL, which can take up to 6 months. Note that the process can take even longer if the employee is not satisfied with DOL’s wage determination and files for a redetermination.
It is recommended that employers wait for the PWD and sort out any salary issues before recruitment. The pay for the job should align with the industry standard for the location of the job. The PWD is a formal document from the DOL and is required to file the PERM.
Step 3: Advertisement of Job Post
Advertisement for non-professional positions requires to fulfill the placing a job order with the appropriate State Workforce Agency (SWA) for 30 days. It is important that this job order is placed with the state workforce agency that corresponds to the state in which the work will take place. Is also required to place the job ad in 2 consecutive Sunday newspapers. Place a notice of filing (NOF), an internal job posting should be posted for 10 consecutive business days on your company’s physical premises. If it’s a union position, proper notice must be given to the representative.
Advertisement for professional positions requires to fulfill more advertisement requirements, such as:
– placing a job order with the appropriate State Workforce Agency (SWA);
– placing a job ad in 2 Sunday editions of a local newspaper with wide circulation in the area of intended employment;
– placing a notice of filing (NOF), an internal job posting should be posted for 10 consecutive business days on your company’s physical premises. If it’s a union position, proper notice must be given to the representative;
– advertising in a job fair, company’s website, trade or professional organizations, and such.
Step 4: Recruitment
Once you start the advertisement, you should start the recruitment process by calling back and interviewing all candidates that apply for the position and meet the minimum requirements.
The employer is required to create a recruitment report and keep copies of resumes, applications, and interview annotations. The PERM recruitment report will also detail the people hired and US workers not hired for the position. The report and documentation is needed in case of a DOL audit.
An audit may be triggered by non-compliance with the PERM requirements, such as not providing sufficient evidence for rejecting a candidate, not running ads according to the regulation, unfair employment practice, not being able to pay the prevailing wage, having close family ties with the foreign employee.
The audits delay the PERM process and can lead to a denial of the Labor Certification.
Step 5: Filing the PERM
Once you are done with recruitment and complete the 30-day waiting period to allow all US candidates to apply, it is time to file the PERM to obtain the Labor Certification.
The DOL typically processes a PERM in the same order it receives them. The review period can be seen on the Foreign Labor Application Gateway (FLAG) portal of the DOL.
Since the beginning of 2020, the DOL has been conducting the initial review of a PERM within 4-6 months. However, the review period is not set in stone and has often been inconsistent.
Step 6: Possible Outcome
The DOL may choose to grant the Labor Certification, conduct an audit or deny the PERM. In case the DOL decides to audit, you would have 30 days to draft a response. The audited PERM is usually processed around 6 months following the employer’s response.
Alternatively, if the DOL denies the PERM you can appeal or re-submitting a new one.
As an employer, you cannot create job roles and responsibilities to match the qualifications of foreign nationals. Any such attempts would imply that the job is not practically available to US workers and may lead to a PERM denial. To petition a foreign employee through PERM, avail the services of skilled and experienced immigration attorneys. Visit our website or contact Terra Immigration Partners by dialing +1 (407) 818-1244 today!