PERM Process

If an employer wishes to hire a foreign national for permanent employment in the United States, the employer must receive permanent labor certification from the Department of Labor (DOL), also known as PERM. If you have questions about submitting a PERM application, contact an experienced immigration attorney at our firm today.

Pre-Filing Requirements

Prior to filing a permanent labor certification application, an employer must complete two important steps:

• Request a prevailing wage determination from the State Workforce Agency (SWA) in the jurisdiction of the proposed employment
• Complete a detailed recruitment report that documents the employer's efforts to recruit qualified American workers for the job

Prior to the passage of the PERM regulations in 2004, employers were able to pay 95% of the prevailing wage to foreign national employees. However, since PERM went into effect in March 2005, employers now must pay 100% of the prevailing wage.

The type and level of recruitment used by the employer must meet the standards required under 20 CFR 656.17(e)(1) for professional occupations or under 20 CFR 656.17(e)(2) for nonprofessional occupations not requiring a bachelor's or other advanced degree. The report must include information that specifies how many US applicants applied for the position and were rejected and why US applicants did not meet the requirements for employment.

Department of Labor Certification

After receiving the prevailing wage determination and compiling the recruitment report, employers next must complete the Application for Permanent Employment Certification (ETA Form 9089) and submit it either electronically or by mail to the Employment and Training Administration (ETA) - the branch of the DOL responsible for processing the forms.

In order to receive certification from the ETA, the employer must be able to show:

• The position is for full-time, permanent employment
• The employment position is bona fide and available to US workers
• The requirements for the job are what is customarily required for the position and have not been tailored to fit the foreign worker's qualifications
• The employer is paying the prevailing wage for the job concurrent with the geographic area of intended employment
• There are no able, willing, qualified and available US workers to fill the position
• By hiring a foreign worker, the wages and working environment of similarly employed US workers will not be adversely affected

The PERM process is supposed to have a faster turn-around than the previous system, with the DOL making it a goal to process applications within 45-60 days. However, the department is not required to process applications within this time frame, so it may take longer.

USCIS Petition

Once an employer has received certification from the DOL, the next step is to file an Immigrant Petition for an Alien Worker (Form I-140) with the US Citizenship and Immigration Services (USCIS) office. Approval by the DOL does not guarantee approval of the USCIS petition. If the petition is approved, the US Department of State will assign the worker an immigrant visa number.

Conclusion

It is vitally important that employers carefully fill out the PERM application and provide all of the requested information and documentation in order to successfully hire a foreign worker. The information employers provide can be audited up to five years after hiring a foreign worker. For experienced guidance on meeting the requirements for permanent labor certification, contact an immigration attorney at our firm today.

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