Navigating the PERM Process for Your Green Card
If you’re applying for an EB-2 or EB-3 Green Ca)rd a primary requirement is a process called Program Electronic Review Management (PERM. This article will provide a guide in navigating the PERM process so you are better informed when the time comes for your employer to apply for you.
What is PERM?
PERM stands for Program Electronic Review Management. It is a system used by the U.S. Department of Labor (DOL) to make sure that hiring a foreign worker will not negatively affect U.S. workers. Your employer has to prove they could not find a qualified U.S. worker for the job they want to give you.
Steps in the PERM Process
Job Description: Your employer creates a detailed job description. This includes the duties, requirements, and working conditions of the job.
Prevailing Wage Determination: Your employer must request a prevailing wage determination from the DOL. This is the average wage for the job in the specific location where you will work. Your employer must agree to pay you at least this wage.
Recruitment: Your employer must try to find qualified U.S. workers to fill the job. This usually involves:
- Placing a job order with the state workforce agency.
- Posting the job in newspapers and other media.
- Posting the job notice at the worksite.
Filing the PERM Application: If no qualified U.S. workers apply for the job, your employer can file the PERM application (Form ETA 9089) with the DOL. This application must show all the steps taken to try to find U.S. workers.
DOL Review: The DOL reviews the PERM application. They confirm all rules were followed and that no qualified U.S. workers were available for the job.
Certification: If the DOL approves the application, they issue a labor certification. This certification allows your employer to file for your Green Card.
Tips for a Smooth PERM Process
- Work Closely with Your Employer: Make sure your employer understands the process and follows all the rules.
- Provide Accurate Information: Ensure that all information provided in the job description and application is correct.
- Stay Informed: Keep up-to-date with any changes in the PERM process or requirements.
How Long Does PERM Take?
Preparation: 2-3 months
This includes setting job requirements and getting wage decisions.
Recruitment: 2-3 months
Your employer must advertise the job for at least 30 days.
Government Processing: 6-8 months
This is how long it usually takes for the government to review the application.
So, from start to finish, PERM often takes about 10-14 months. But remember, these are general approximations and timelines can change. Sometimes the Department of Labor is faster, sometimes slower.
What Happens After PERM?
Once the labor certification has been processed, your employer can file Form I-140, the Immigrant Petition for Alien Worker, with the U.S. Citizenship and Immigration Services (USCIS). After the I-140 is approved, you can then apply for your Green Card.
Navigating the PERM process is an important part of getting your Green Card. By understanding each step and working closely with your employer, you can make this process easier and more successful. If you have questions or need help, consider consulting with one of our legal experts.
FAQ
Can a Foreign National Apply for PERM Labor Certification Independently?
No, a foreign national cannot apply for PERM labor certification independently. The PERM process must be initiated and completed by a U.S. employer on behalf of the foreign national worker. The employer is responsible for all aspects of the PERM application, including conducting the necessary recruitment and filing the application with the U.S. Department of Labor (DOL).
What Are the Job Advertisement Requirements in the PERM Process?
The job advertisement requirements in the PERM process are designed to ensure that the employer makes a genuine effort to recruit U.S. workers for the position before hiring a foreign national. These requirements include:
- Media Advertisements: The employer must place a public job advertisement. This includes but is not limited to newspapers, radio, television and social media.
- Job Order: A job order must be placed with the State Workforce Agency (SWA) for at least 30 days.
- Additional Recruitment Steps: For professional positions, the employer must undertake at least three additional recruitment steps, which may include using job fairs, employer websites, job search websites, campus recruitment, trade or professional organization postings, and more.
- Notice of Filing: The employer must provide a notice of the job opportunity to its employees, typically by posting a notice at the workplace or via electronic means for 10 consecutive business days.
- Job Requirements: The advertisements must accurately describe the job opportunity, including job duties, minimum requirements, and the wage offered. The requirements must be aligned with industry standards and cannot be tailored to exclude U.S. workers.
The employer must retain all recruitment documentation and evidence of compliance with these requirements for the PERM application.
What Happens if the PERM Application Is Audited by the Department of Labor?
If the PERM application is audited by the Department of Labor (DOL), the employer must provide additional documentation and evidence to support the application. An audit can occur randomly or because the application triggered specific red flags. During an audit, the DOL may request:
- Copies of all recruitment advertisements.
- Proof of compliance with the prevailing wage determination.
- Documentation showing the recruitment results, including reasons for rejecting U.S. applicants.
- Evidence of the job opportunity's bona fide nature.
The employer must respond to the audit request within a specified timeframe, typically 30 days. Failure to respond can result in the denial of the PERM application. The audit process can extend the timeline for obtaining labor certification and may involve additional scrutiny of the employer's recruitment efforts and the legitimacy of the job opportunity.
Can the PERM Process Be Expedited or Bypassed?
The PERM process itself cannot be expedited or bypassed. However, there are alternative pathways for certain employment-based immigration categories that do not require a PERM labor certification. For example:
EB-1 Category: Individuals with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers may qualify for the EB-1 category, which does not require a labor certification.
National Interest Waiver (NIW): The EB-2 NIW allows certain individuals to bypass the labor certification process if they can demonstrate that their work is in the national interest of the United States.
Schedule A Occupations: Certain occupations that are in high demand in the U.S. workforce, such as physical therapists and nurses, are pre-certified under Schedule A by the DOL, allowing them to bypass the labor certification process.
While the PERM process has specific timelines and procedural steps, employers and foreign nationals should consult with an immigration attorney to explore all possible immigration pathways and determine the most appropriate strategy based on the individual's qualifications and circumstances. If you or your employer are looking for support on your Green Card, book a call with us today!