PERM Labor Certification is the process in which foreign nationals, in preference categories EB-2 and EB-3, can obtain an employment-based immigrant visa (Green Card). Before an employer can petition on behalf of a foreign worker, the employer must first obtain an approved Labor Certification from the Department of Labor (DOL). Labor Certification is submitted by using ETA Form 9089. Labor Certification is the primary tool for the government to assess employment-based immigration cases. A successful Labor Certification will prove that there is a shortage of able, willing, qualified, and available US workers for the occupation in which the foreign worker is applying, and that the employment of the foreign national will not adversely affect the wages and the working conditions of US workers in the area of intended employment.
Before filing a PERM Application, an attorney and the employer must first assess the likelihood of PERM approval; this means properly defining the minimum requirements of the desired job and ensuring that the applicant’s qualifications meet those requirements. Next, the attorney or employer must obtain a prevailing wage from DOL. A prevailing wage determination request can take 3 to 5 months to process.
Furthermore, before filing a Labor Certification application, the employer must develop appropriate recruitment efforts. The employer should provide documentation and valid reasons for rejecting US applicants. Recruitment requirements are divided into two categories: professional occupations and nonprofessional or “skilled worker” occupations. When dealing with nonprofessional positions, employers must place a job order with the local State Workforce Authority (SWA) for 30 days and run at least two advertisements in a Sunday newspaper. The same standards apply to professional positions; however, employers must do additional recruitment by taking part in 3 other recruitment methods–a few examples would be job fairs, campus recruiting, radio advertisements, and the employer’s website.
The Labor Certification process begins when the employer or employer’s agent or attorney files an ETA Form 9089 Application for Permanent Employment Certification at DOL. No documentation is needed for this form. This form consists primarily of yes and no questions, but it is incredibly important that the answers are filled out accurately.
PERM regulations also require that the employer prepare a recruitment report signed by the employer. This form is not filed with the Form 9089 Application, and will only be submitted if requested in an audit. The attorney must ensure the employer prepares a proper recruitment form. The attorney or the employee should assemble supporting documentation with evidence of all recruitment efforts, advertisements, resumes received, and all other documentation required and specifically enumerated by PERM regulations. In the event of an audit, all documentation required must be submitted to DOL within 30 days. PERM also requires the employer to notify their employees of the Labor Certification filing. Notice of intent to file must be posted for 10 consecutive business days at the worksite or be given to a bargaining representative.
The PERM Labor Certification process is very complex, and mistakes along the way are common. The most common mistakes include spelling and grammar errors or forgetting to fill out a particular field. Any of these mistakes, no matter how small, can lead to immediate rejection. Many employers also fail to include the applicant’s past and present work supervisors when filling out the ETA Form 9089. Another common mistake is that employers fail to respond to the DOL registration email, which is sent after filling out Form 9089. It is crucial for the employer to check their spam folder as the email often ends up there. Lastly, it is important to note that new employers are often not recognized and may be required to submit further documentation to verify their identity.
In light of the pandemic and the current high unemployment rate, employers who believe their field has been and will continue to be highly impacted by COVID-19 should rethink conducting PERM recruitment at this time. Employers may consider obtaining a Prevailing Wage Determination (PWD) first from DOL that will remain valid through the end of the current fiscal year (June, 2021), in case the employer wishes to conduct recruitment later and can then use those PWD results.