The process of sponsoring a foreign worker for permanent residency consists of three major steps:
- Filing PERM application with the Department of Labor;
- Filing Form I-140 with USCIS;
- Applying for Adjustment of Status or Consular Processing.
In this article we will focus on the 1st step, the PERM process.
What is PERM?
PERM is a three-step online process that is formally known as the “Program Electronic Review Management System”.
Most employment-based green card petitioners will need to complete a Department of Labor (DOL) PERM process before submitting immigrant petitions with USCIS.
- U.S. employer is the Petitioner
- Foreign employee is the Beneficiary
All EB-2 and EB-3 employment-based categories require an approved PERM application.
Immigrant categories that do not require PERM are:
The PERM process is a test of the U.S. labor market to demonstrate that the foreign worker is not negatively impacting U.S. workers and the U.S. labor market.
The PERM process demonstrates to the DOL that U.S. workers are not being displaced or disadvantaged by hiring foreign labor.
PERM is generally not available to the following categories:
- Self-employed individuals;
- Individuals who have an equity stake in their employer’s business;
- Part-time workers;
Keep in mind that attorneys’ fees may not be paid by the beneficiary in the PERM process.
PERM application consists of the following parts:
- Providing job description
- Wage requirements
- Recruitment process
- Filing Form 9089
- Audits (if applicable)
- PERM decision
We will discuss each part of the process in detail below.
Step 1. The Job Description
The PERM process is essentially a test of the labor market requiring a petitioner to advertise and determine whether there are willing, able, qualified, and available U.S. workers to fill a position before the DOL will approve the foreign beneficiary’s labor certification.
The PERM process starts by preparing a job description that includes:
- Job title;
- Minimum requirements necessary to perform the job.
A job description cannot be tailored to the beneficiary.
Petitioners should post the job requirements that are truly necessary to perform the job.
Job duties and minimum requirements should be normal for such a position or arise out of the company’s necessity.
DOL may challenge the proposed job description, and petitioners bears the burden of proof to show that anything beyond the norm arises from a true necessity of the company.
The petitioner cannot require any experience that it has previously provided through on-the-job training or that the beneficiary has gained in the position.
- Jobs requiring at least a bachelor’s degree and five years of experience, or an advanced degree and any experience, will qualify for the employment-based second preference (EB-2) category.
- Any positions requiring less than that will fall into the employment-based third preference (EB-3) category.
The distinction between EB-2 and EB-3 categories is important because these immigrant categories are frequently backlogged due to yearly quotas.
- For example, EB-2 is generally faster than EB-3;
- However, you need to check the priority date for the beneficiary’s country of birth. For some countries, EB-3 moves faster than EB-2.
In the job description, the petitioner lists the specific type of degree (bachelor’s, master’s, etc.) and the acceptable field(s) of study.
If the employer will accept equivalent foreign degrees, then that should be explicitly listed on the labor certification.
The employer may also accept alternative education requirements, for example:
- A bachelor’s degree plus five years of experience, or
- A master’s degree and two years of experience.
All other requirements should be explicitly listed on the Notice of Filing.
Employers should include the type of experience that is absolutely required for hiring in the position and skip the skills that are “preferred”.
- For example, “At least 5 years of experience in backend development” meets the requirements.
It is important to note that proof of beneficiary’s experience required for the position will later have to be submitted to USCIS with Form I-140.
Beneficiaries will need to submit:
- Signed, detailed experience letters from their previous employers, or
- Letters from their current employers in positions that are at least 50 percent different than the prospective PERM position.
Step 2. Wage Requirements
The first filing in the PERM process is called a “Prevailing Wage Request”.
Historically, this electronic Form ETA-9141 was completed through DOL’s online system.
An employer or the employer’s attorney must create an account in the Foreign Labor Application Gateway (FLAG) System to initiate the filing of a Prevailing Wage Request with the National Prevailing Wage Center (NPWC).
Form ETA-9141 gathers the following information:
- Description of the proposed job;
- Job title;
- Education requirements.
It generally takes NPWC three to four months for the application to return a Prevailing Wage Determination (PWD).
The purpose of the prevailing wage determination process is to set the minimum amount the petitioner may pay the beneficiary.
Once a wage determination has been made, the employer must:
- Pay at least the higher of the determined wage, or
- Pay the amount already being paid to similarly skilled and qualified workers.
The company must be willing to pay the prevailing wage to the beneficiary at the time they become permanent residents.
Depending on the beneficiary’s country of birth that may be a year away, for others who are subject to long country specific backlogs (India and China), this may be many years away.
If the prevailing wage determination comes back higher than the employee is earning, the company generally has four options:
- The employer can agree to the higher wage and pay it at the time the beneficiary becomes a permanent resident;
- The employer can reevaluate the filing to make sure only the minimum requirements were listed and there was not unnecessary language that led to a higher than warranted determination and then refile a corrected job description;
- The employer may file an appeal of the wage determination with the NPWC and present further evidence showing why the wage determination should be lower;
- The employer can choose to abandon the process at that stage and not make any adjustments to the beneficiary’s pay.
Each PWD will have an expiration date:
- They are valid for at least 90 days from the date of the determination
- They will never be valid for more than one year.
In order to use a PWD before it expires, the employer must either:
- File the PERM application before the PWD expires, or
- Start recruitment before the expiration date on the PWD (see below).
Step 3. The Recruitment Process
Once the employer receives a prevailing wage determination, it is time to begin the recruitment process to test the labor market.
The recruitment must be performed within the six-month period prior to filing the labor certification.
In every recruitment for a professional occupation (requiring at least a bachelor’s degree), there are:
- Three forms of recruitment that are required by law, and
- Three additional forms of recruitment that can be chosen from 10 acceptable options.
The three required methods include:
- Placing a job order with the State Workforce Agency (SWA) for 30 days;
- Placing newspaper advertisements in two separate Sunday print editions of the major local newspaper, which is the “newspaper in general circulation” for the area of employment; and
- Posting of the Notice of Filing at the location(s) of employment in a visible place for at least 10 consecutive days or providing a copy of the notice to a local union if there is a collective bargaining agreement.
10 acceptable options include:
- Recruit in-person at a job fair;
- Post the job opening on company’s website;
- Post the job opening on a known job-search website that is not affiliated with the company;
- Recruit by participating in on-campus recruitment at a school;
- Place a notice of the opening in a relevant trade or professional organization’s publication;
- Retain a private recruitment firm to conduct a job search for applicants;
- Post the position with a campus placement office;
- Post a newspaper advertisement with a local or ethnic newspaper;
- Recruit for the position on local radio or television;
- If the employer has an employee referral program that identifies specific incentives for making referrals, then the employer may notify employees that the position is available and part of the incentivized program.
To meet all government requirements, the job advertisements must contain the following key information:
- Employer’s name;
- Direct applicants to report or send résumés, as appropriate for the occupation, to the employer;
- Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
- Not contain a wage rate lower than the prevailing wage rate;
- Not contain any job requirements or duties that exceed the job requirements or duties listed on the ETA Form 9089; and
- Not contain wages or terms and conditions of employment that are less favorable than those offered to the beneficiary.
The 30-day posting requirement with the SWA is the longest running advertisement.
All of the remaining steps can be completed during that time.
A mandatory 30-day wait period in which the employer must continue to accept applications begins the day after the last advertisement has ended.
The total recruitment process can be completed in 60 days.
After that the company must assess applicants in order to determine whether there are any able, willing, qualified, and available U.S. workers.
The employer must interview candidates who appear to be qualified.
Only the employer can complete this process—the beneficiary and attorney cannot be involved in the recruitment process.
During the job interviews with candidates, the employer must:
- Determine if there are “lawful job-related reasons” for rejecting a candidate.
- Find out whether the applicant meets the minimum education and experience requirements and is otherwise willing, able, and available to accept the position as offered.
- A candidate cannot be rejected simply for not currently possessing skills that could be acquired “during a reasonable period of on-the-job training.”
If the recruitment is being conducted for multiple open positions and an able, willing, qualified, and an available U.S. worker applies, the employer may offer them one of the open positions and still continue with the labor certification process.
If only one position is available and such a candidate is found, then the labor certification cannot move forward because the test of the labor market was not sufficient to demonstrate a lack of able, willing, qualified, and available U.S. workers.
The employer must prepare and sign a detailed recruitment report at the end of every recruitment process.
Step 4. Filing Form 9089
Once the recruitment has sufficiently demonstrated that there are no willing, able, qualified U.S. workers available to fill the position, the petitioner can file an online PERM ETA Form 9089 Application for Permanent Employment Certification.
The ETA Form 9089 will gather the following information:
- Details about the company;
- Contact information of the person filing the PERM (generally the attorney);
- Details about the position (the title, duties, education requirements, experience requirements, training requirements, and alternative acceptable requirements);
- Forms of recruitment used for the test of the labor market;
- Beneficiary’s biographical information.
After answering additional questions sent by email, the ETA Form 9089 will be officially submitted for review.
Step 5. Audits (If Applicable)
The ETA Form 9089 can be approved based on the electronic application alone. However, DOL can conduct an audit.
Because the ETA Form 9089 asks such basic information about the recruitment, some audits occur randomly to ensure that the recruitment was truly completed as indicated on the ETA Form 9089.
Newer and smaller companies can be asked for additional documents to prove that the company is real.
Also, an audit may ask for additional information to prove business necessity for the requirements of the position if the job requires:
- Higher than normal experience;
- Foreign language skills;
- Lots of travel or remote work;
- Situations where the beneficiary is related to a company owner.
Employers are given 30 days to respond to a DOL audit.
The audit file must contain the following documents:
- All of the recruitment materials (advertisements details);
- The recruitment report;
- Resumes received from applicants;
- The prevailing wage determination used on the 9089;
- All notices and postings;
- Letters demonstrating business necessity (if applicable);
- Evidence of any relevant layoffs that occurred prior to the recruitment.
The audit file must be stored for five years minimum.
If the recruitment was properly performed, then most cases are still approved even after the audit, but the audit will delay the process.
Step 6. PERM Decision
The employer will receive an email notification when the case is approved.
DOL will then send the certified ETA Form 9089 in a separate email.
The next step will be filing Form I-140 Immigrant Petition for Alien Worker with USCIS.
The certified ETA 9089 must be included with the filed Form I-140 within 180 days of the PERM approval, otherwise it will expire.
You should keep in mind the following limitations of a PERM application:
- Substituting the beneficiary of a PERM is impossible. It must be the same beneficiary that was listed on the labor certification.
- Amending or modifying the labor certification after its approval is impossible too. If modification is needed, then the PERM must be withdrawn and a new application submitted.
If the DOL officer denies the ETA Form 9089, then the attorney and employer will receive a decision by email, which states the reason for the denial.
The employer then has 30 days to request reconsideration by the certifying officer or a review of the denial with Board of Alien Labor Certification Appeals (BALCA).
The employer also has the option to file a new application, but a new application cannot be filed for the same position while a request for review is pending with BALCA.
If the certifying officer finds that the employer failed to produce required documentation or submitted inadequate documentation, that a material misrepresentation was made, or finds it otherwise inappropriate, the employer may be required to conduct supervised recruitment in future labor certification filings for a period of up to two years from the date of the final determination.
What to Do After PERM is Approved
As noted above, the PERM-based green card process has three steps:
Step 1. Labor certification;
Step 2. Filing Form I-140 immigrant visa petition; and
Filing Form I-140
If an immigrant visa number is immediately available, then Forms I-140 and I-485 (Adjustment of Status) applications may be filed concurrently (at the same time).
Once the PERM is approved by the DOL, the employer has six months to file Form I-140 Immigrant Petition for Alien Worker with USCIS.
While the filing date of the PERM becomes the foreign national’s priority date for the Visa Bulletin, it is actually the approval of the Form I-140 that solidifies that priority date for the foreign national.
The foreign national will always retain that priority date.
Even if used for a future application by another employer, beneficiaries can still rely on the priority date of the previously filed petition.
Form I-140 must be accompanied by an original PERM or Form 9089.
Also, it is possible for the same approved PERM to be the basis for multiple Form I-140s in both the EB-2 and EB-3 categories otherwise known as upgrading and downgrading.
The DOL requires that an approved PERM be used in support of an I-140 within 180 days of the PERM approval.
However, USCIS makes an exception to the rule for subsequently filed Forms I-140:
- For example, If an I-140 is denied or the petitioner wants to upgrade or downgrade, a new petition can be filed outside the 180-day validity period.
USCIS has accepted I-140 petitions in the past to “downgrade” to an EB-3 when filed as new petitions even without an original PERM approval.
Form I-140 gathers the following information:
- Information about the beneficiary (including spouse and children, if applicable);
- Information about the employer (type of business, the year company was created, number of employees, gross and net annual income);
- Information about the position (job title, Standard Occupational Classification (SOC) code from the PWD, description of the duties, offered wage, worksite location).
The most common problems at the Form I-140 stage are:
- Employer’s ability to pay the offered wage, and
- Showing that the beneficiary is qualified for the position.
To prove the ability to pay the prevailing wage, the employer can provide the following documentation:
- Annual reports;
- Federal tax returns,
- Audited financial statements;
- Evidence that the company already has been paying the offered wage (if the beneficiary is currently employed at the company);
- Startups can provide bank statements showing that they have sufficient capital to pay the proposed salary.
Demonstrating that the beneficiary of the Form I-140 petition qualifies for the position is the issue that should be considered seriously from the very beginning of the PERM process.
When filing Form I-140, the beneficiary is expected to provide evidence that she or he has the education credentials and experience required by the position listed on the PERM application.
- Proof of education: copies of diplomas and college transcripts, evaluations of foreign degrees (if applicable);
- Proof of experience: experience letters from the beneficiary’s previous employers. These letters should be on the company letterhead.
Unlike the PERM process, any party can pay the costs associated with the Form I-140 filing.
After Form I-140 is approved, the beneficiary’s priority date is solidified, and depending on visa availability, the beneficiary can proceed to the final step.
Adjustment of Status or Consular Processing
After Form I-140 is approved, a beneficiary, their spouse and children under 21 may apply for green cards.
- If the beneficiary is in the U.S. in valid nonimmigrant status, they can apply for Adjustment of Status with USCIS;
- If a beneficiary is abroad, they can apply for Consular Processing with the Department of State (DOS).
The beneficiary, their spouse and children under 21 must file their own application.