Employment-Based Permanent Residency (Green Card):
Stage 1: PERM Labor Certification Process
The PERM Labor Certification process is NOT a process that simply entails filing out an electronic application and submitting it online. The PERM process has numerous recruitment steps that go above the previous labor certification processes. There are many recruitment steps that must be completed prior to filing the application. Please review the steps required to file an application under PERM:
1. Employer must submit a prevailing wage determination to the SWA
The employer is required to required to pay 100% of the prevailing wage; the 5% variance is no longer allowed. The SWAs are expected to respond expeditiously to request for wage determinations but no specific timeframes were imposed, hence some SWAs take 2 days while others take 2 months. The validity of the prevailing wage determination will be no less than 90 days and no more than one year from the date of the determination. Employers must file their applications or commence the recruitment within the validity period specified by the SWA. If the employer disagrees with the PWD, it may file supplemental information, or file a new PWD request, or appeal under section 656.41.
2. Post an internal notice
The employer must post notice of the job opportunity for at least ten consecutive business days in a public area within the company, such as a company bulletin board or break room area. The notice period must be between 180 and 30 days before filing. The notice must contain the offered salary, which must be at least the prevailing wage or higher. This is similar to the RIR posting notice. In addition to printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.
3. Place Job Order
The employer must place a job order with the SWA for a period of a minimum of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.
The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ads may be placed and are encouraged to be placed on two consecutive Sundays.
5. Three Additional Recruitment Steps for Professional Positions (those requiring a minimum of a Bachelor’s degree or higher):
The PERM regulation retains the requirement in the proposed regulations that applications for professional jobs must have additional recruitment. The list of permitted additional recruitment steps in the final PERM regulation include:
Further, a web page generated in conjunction with a print ad now counts as a website other than the employer’s (under #3 – job search website – listed above.) The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month. Only one of the additional recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the employers to specify the dates of each additional recruitment step, hence, a printout must occur on the start date and end date of each step in case of an audit. The final rule specifies how each type of additional recruitment activity can be documented. Alternative recruitment steps only require employers to advertise for the occupation.
6. Recruitment Report
The employer must prepare a recruitment report that describes the recruitment steps taken and the results. The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection (for more information about applicant qualifications, see the separate recruitment information section.) The employer must sign the recruitment report and issue it on company letterhead. The CO (Certifying Officer) may, after reviewing the employer’s recruitment report, request copies of the US workers’ resumes, sorted by the reasons for rejection. In response to numerous comments from employers who receive a large volume of unsolicited resumes, the final rule does not require the employer to identify the individual U.S. workers who applied for the job opportunity. Please keep in mind that by law the alien for whom the petition is being filed is not permitted to be involved in the recruitment process. Additionally, while attorneys can respond to general questions about the process, by law, they may not be involved in recruitment either.
7. Supporting documentation
Whether filed electronically or by mail, no supporting documentation will be filed with the ETA 9089. Instead, the employer must maintain supporting documentation in the event an audit is required or the Certifying Officer otherwise requests certain documents. Such documentation, along with a copy of the ETA form, must be retained for five years from the date of filing ETA 9089.
8. Audit Procedures
The Certifying Officer (CO) of the PERM Processing Center can request an audit of any permanent labor certification either for a targeted or random reason. If selected for audit, the Employer will receive an audit letter specifically stating the additional documentation to be submitted, along with the deadline of 30 days from the date of the audit letter for response. The letter will advise that the application will be denied if the information is not received by the due date. If the employer does not respond as required, this will be considered a refusal to exhaust administrative remedies and no review is available either administratively or judicially. At the discretion of the C.0., the Employer may also be required to conduct supervised recruitment for any future labor certification filings for up to 2 years. The CO may grant one extension up to 30 days from the initial 30 period in which to respond to the audit letter. After receipt of the response from the Employer, the CO may also request additional information and/or documentation or require that the Employer conduct supervised recruitment. For these reasons, it is always advisable to respond to an audit request in order to avoid future issues with other petitions and to prove to the Department of Labor that valid, bona fide recruitment efforts have taken place.
9. PERM was designed to process cases in 120 to 180 days
The officer may deny, approve, or audit the petition. It is important to note that due to the two service centers (Atlanta & Chicago) being cut to one service center (Atlanta only), the processing of PERM petitions has significantly slowed. We have seen certifications from 1-365 days, with the average now reaching 300-365 days. For cases subjected to random or targeted audits, the processing time is signficantly longer and taking over 1-2 years.
10.Labor Certification Determinations
The Chief, Division of Foreign Labor Certification is the National Certifying Officer. The NCO and the COs of the PERM Processing Centers have authority to certify or deny labor certification applications. Labor certification applications with special or unique problems can be referred to the NCO. The NCO can request that certain types of labor certifications be handled at the ETA national office. The decision to grant or deny a labor certification is based on a decision of whether or not the Employer has met the requirement that there are no U.S. workers who are able, willing, qualified and available for and at the place of the job opportunity. The Employer must consider whether a U.S. worker could acquire the necessary skills during a period of on-the-job training. For a job opportunity as a college or university teacher, the U.S. worker must be at least as qualified as the alien. The CO must also consider whether the employment of the alien will adversely affect the wages or working conditions of U.S. workers similarly employed. The CO shall notify the Employer in writing either electronically or by mail of the determination. If granted the CO must send the certified application and Final Determination form to the Employer or if appropriate his agent or attorney.
If the labor certification is denied, the Final Determination will state the reasons, advise of review procedure contained in the regulations and advise that failure to request review within 30 days of the date of determination constitutes failure to exhaust administrative remedies. If a request for review is not timely made, the denial becomes the final determination of the Secretary. If no request for review is made, a new labor certification can be filed at any time. If a request for review is made, no new application in the same occupation for the same alien can be filed until the review procedures are completed.
If the CO determines that the Employer substantially failed to produce required documentation, produced inadequate documentation or made a material misrepresentation or for other reasons, the CO may require the Employer to conduct supervised recruitment in future filings of labor certifications for up to 2 years from the date of the Final Determination. The Employer may request reconsideration of this determination within 30 days of the date of the denial. The request for reconsideration may not include evidence not previously submitted. The CO can reconsider the determination or treat it as a request for review.
If a labor certification application is denied, or revoked, a request for review of the denial or the revocation may be made to the Board of Alien Labor Certification Appeals (BALCA) by the Employer. The Request for Review (RFR) is filed with the Certifying Officer (CO) who denied the application and must be filed within 30 days of the date of the determination. It must set forth the grounds for the request, include the Final Determination, and may not include evidence not already in the record.
Upon receipt of a RFR, the CO must assemble an Appeal File and send it to the BALCA and send a copy to the Employer. The Employer may furnish or suggest to the BALCA that additional information be made part of the Appeal File if such information was submitted to DOL before issuance of the Final Determination. In considering RFR's the BALCA must afford all parties 30 days in which to submit or decline to submit a legal brief or Statement of Position. The BALCA must either (a) affirm the denial or revocation of the labor certification, or the affirmation of the PWD; (b) direct the CO to grant certification, overrule the affirmation of the PWD; or (c) direct that a hearing be held to consider the case.
After issuance, a labor certification may be invalidated by DHS or a Consul of the Department of State upon a determination, either by one of those agencies or by a court, of fraud or willful misrepresentation of a material fact involving the labor certification application. If evidence of fraud or a willful misrepresentation becomes known to the CO or the Chief, Division of Foreign Labor Certification, he/she shall notify the DHS or Department of State, as appropriate, in writing, as well as the DOL's Office of Inspector General (OIG). If possible fraud or willful misrepresentation is discovered before a final labor certification determination, the CO will refer the matter to DHS for investigation and must send a copy to the DOL's Office of Inspector General.
The above referenced is how the PERM process differs from the RIR process. I hope it is clear to you now why there is an additional charge for the PERM process.
Previously published RIR advertisements may or may not be acceptable, which poses an obvious risk that the application may not be approved with the old ads. If you elect to use the RIR advertisements, and they prove to be unacceptable additional recruitment steps that must be completed a second time. We can NOT guarantee that your permanent residency application will be successful. We will put forth every effort to increase the probability of success, but we will make no guarantees.