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For many work visas and employment-based green cards, the first step is to obtain a PERM labor certification from the Department of Labor (DOL), which requires an extensive PERM advertising process. These procedures exist to ensure that employers are not taking advantage of the immigration system to deprive qualified U.S. workers of potential jobs.
Before submitting the PERM, the petitioning employer is required to complete the proper recruitment steps for the job in question. In regards to the process, PERM advertising and recruitment can be quite complicated due to the very stringent advertising requirements.
PERM advertising regulations require that the proper recruitment steps be fulfilled for both professional and non-professional job positions. It’s necessary to note that all petitioning employers must attest to completing the PERM advertising and recruitment requirements before moving on to the application.
If the DOL suspects that the advertising process was not completed in a satisfactory manner, then you may be subject to a targeted audit. This can seriously delay the processing time of your employee’s work visa or green card. While some audits are random and therefore unavoidable, following the PERM advertising process carefully can help mitigate the chances of being targeted by the DOL.
The first thing that should be done before embarking on the PERM recruitment and advertising process is to determine the prevailing wage for the offered position. This is the wage that the DOL has determined to be appropriate for this particular position in your geographic location.
You must make sure that, if your job advertisements display the wage, it is not lower than the prevailing wage. This is especially important for the Notice of Filing, as you will see further on in this article.
Below are the mandatory recruitment activities required for both professional and nonprofessional occupations. Note that this process aims to cover all of the major avenues by which workers seek employment so that the DOL can be reasonably sure that you have made a legitimate effort to find a suitable U.S. worker to fill your position.
Employers are required to place a job order with the appropriate State Workforce Agency (SWA). It is important that this job order is placed with the state workforce agency that corresponds to the state in which the work will take place.
For example: If you are an employer located in California that has a position open in a branch in Texas, then you must place the job order with the Texas workforce agency instead of the California workforce agency.
Once you have placed the job order, you need to let it run for at least thirty (30) consecutive days, including weekends. Many prospective employers choose to allow the order to run for a few days longer to avoid the complications that can arise from not adhering to this 30-day regulation.
After the job order has ended its run, you must wait at least 30 more days before filing your ETA 9089 form. So, if your job order ran from January 1st to January 31st, you would not be able to file the ETA 9089 form until March 3rd. The reasoning behind this PERM filing process is the give potential U.S. job applicants the opportunity to apply for the position after the order has been placed.
As with many of the documents related to the PERM ad requirements, we recommend you keep printed copies of the SWA’s job posting as part of your PERM labor process documents.
You are required to place a job ad in 2 Sunday editions of a local newspaper with wide circulation in the area of intended employment. So, if the position will take place in Miami, your ad should be in the Miami Herald or a paper with similar recognition.
If the position is in a rural area which does not have a Sunday edition, the employer should use the newspaper that has the widest circulation.
The PERM ad requirements state that the ad must include:
Also known as a notice of filing (NOF), an internal job posting should be posted for 10 consecutive business days on your company’s physical premises. If it’s a union position, proper notice must be given to the representative.
The NOF needs to include very specific language that alerts your current employees that you are in the process of obtaining a PERM Labor Certification. This must also give them the opportunity to submit documentary evidence that has a bearing on the application.
According to the regulations, it must contain the following information:
It is important not to ignore or forget this step as it can be the difference between the success or failure of your application. Working alongside a qualified immigration lawyer can help ensure that this aspect is not overlooked and is satisfactorily completed.
Here are some common reasons why your PERM may be denied on account of the NOF:
Incomplete or inconsistent information is one of the easiest ways to be audited or to have your application denied. To protect the efforts you’ve made in the PERM recruitment process, make sure to pay attention to every detail and follow the instructions carefully. The DOL is not open to entertaining any arguments for why their rules were not upheld.
On top of the above requirements, an employer can choose a combination of any 3 additional recruitment methods outlined below to meet the additional recruitment requirement for professional positions:
It is important to note that each of these ads can have a PERM advertising duration of any length of time whether it be just one day or several. The choice is up to you. However, you must wait at least 30 days after the end of your ad campaigns to file your ETA 9089 form. Because of this, it is often advisable to run the job order, notice of filing, and all ads as concurrently as possible to avoid unnecessary delays.
Here is a PERM recruitment advertising sample that was posted online containing the information required in each ad:
Note: You don’t need to include every minute detail pertaining to the job within the advertisement but it should be thorough and include the basics like the name of the employer, address, contact information and job outline. You do not necessarily need to include the wage within the advertisement. However, if you choose to include it then it should not be lower than the Prevailing Wage Determination.
Non-professional positions are only required to fulfill two of the steps. Those are placing a job order with the State Workforce Agency (for 30 days) and placing the job ad in 2 consecutive Sunday newspapers.
If you are an employer looking to sponsor someone for an EB2 green card, PERM Labor Certification will most likely be required. However, there are certain situations in which an applicant is able to self-petition through the use of a National Interest Waiver (NIW) which excuses the applicant from needing a job offer or a PERM.
To obtain an NIW, the applicant must be starting or investing in an enterprise that the USCIS deems as having a substantial positive impact on the national society, economy, or culture. The applicant must also prove that requiring a PERM in this situation would not benefit the national interest.
If you are a prospective EB2 green card applicant and you believe that you may qualify for an NIW, talk with your immigration lawyer to learn about the steps you need to take.
Once the job has been advertised, the employer is responsible for interviewing the candidates who have met the requirements including U.S. citizens. Should the employer reject U.S. citizen applicants, then you must document the reason for this in the recruitment report.
The reason should be lawful and non-discriminatory. All recruitment should take place 180 days before filing the labor certification application and should be completed 30 days before submitting the ETA 9089 form.
Due to the complexity of PERM recruitment and advertising, it’s best to consult an immigration attorney to ensure the proper steps are being followed.
Paper documentation is required throughout each step of the process. That means the employer should have copies of resumes, applications, recruitment reports when conducting interviews, etc.
The PERM recruitment report will also detail the number of hires as well as U.S. workers not hired for the position. Be aware that there needs to be enough detail about the rejected U.S. workers for an auditor to scan if that occurs. Remember, the DOL intends to make sure that no foreign worker is displacing U.S. workers. Keep this in mind when documenting the reasons for rejecting workers in your PERM recruitment report.
Also, as stated before, you should keep a meticulous record of all correspondence, contracts, and payment receipts concerning your ad campaigns to provide sufficient proof that you took the necessary measures to find a qualified U.S. job applicant. It is also important for your PERM recruitment report to perfectly match the information given on the ETA-9089 and the Notice of Filing to be posted in your place of business.
Boundaries When Rejecting U.S. Workers
There needs to be clear and lawful evidence for rejecting a U.S. worker. As the employer, you need to judge whether the U.S. applicant could fill the job with a reasonable amount of on-the-job training (if necessary). For example, you wouldn’t expect an employer to spend several months training a worker in one of five necessary skills.
Use your best judgment to evaluate each candidate and seek the advice of a qualified attorney for more information.
About 30 percent of PERM applications are randomly audited by DOL.
There are two main ways that your PERM could be delayed, besides denial of course: auditing and supervised recruitment. Keep in mind that these are not mutually exclusive and can occur with the same PERM application and even simultaneously.
Under normal circumstances, you would keep a record of all ads posted as well as all applicants that applied along with their reasons for rejection. Then, you would compile all of this information in a recruitment report for the DOL to review before making a decision on your PERM.
However, whether through random chance or because of an issue with your report, there is always the possibility that you could be audited. If this happens, you and your attorney must submit all supporting documentation to satisfy what the audit request requires. It is important to note that withdrawing your application does not excuse you from the audit, and you will be subject to whatever consequences arise from this process.
A targeted audit can occur due to a number of factors, such as not providing sufficient evidence for rejecting a candidate, not running your ads in the right places for the correct length of time, not being able to pay the prevailing wage, or even having close familial ties with the foreign beneficiary. Being audited can add between 9 to 18 months to your PERM processing time.
On the other hand, you could also be subjected to supervised recruitment. If there has been a problem with your PERM process in the past, then the DOL may assign you a Certifying Officer (CO) before your PERM recruitment process to review each document as you place ads and interview candidates.
If the DOL decides to implement supervised recruitment after your recruitment is over, then you may need to start from the beginning with your CO. This is usually the result of major suspicions on the part of the DOL that your report or your documentation is not accurate or legitimate. To help avoid audits and supervised recruitment, it is important to hire a qualified immigration attorney to help you deal with anything that arises.
As with many aspects of immigration law, there is also the chance that your PERM advertising process will be denied. This can be the result of simple mistakes on your ETA 9089, a lack of supporting documentation for your advertising and recruiting, or a violation of the PERM advertising guidelines.
If this happens, then you will need to take your denial letter to your PERM attorney. With his or her help, there are a few options available to you:
Below you will find answers to the most commonly asked questions about PERM advertising.
What is PERM advertising?
Advertising the job position is a crucial step in the PERM process. The main objective is to vet the employer to make sure that hiring foreign talent does not displace domestic workers who could otherwise occupy the position.
How long is PERM advertising?
The job ad needs to be active for at least 30 consecutive days (including weekends).
What does PERM stand for?
It stands for Program Electronic Review Management.
What is a PERM in business?
It’s the application process required by employers in the United States who want to recruit foreign talent.
Can I get promoted during the PERM process?
Discuss this with your attorney but generally, changing the job description or wages is not advised.
What is the prevailing wage determination?
The PWD is the wage that the U.S. DOL has deemed to be appropriate for this particular position in your geographic location.
What form needs to be filed for a prevailing wage determination?
In order to request a PWD for an H1B, PERM, H1B1, H2B or E3, you’ll need to file Form ETA-9141.
What wage sources can be used for the H1B1, H1 or E3?
The employer can choose between using the wage source from either the prevailing wage determination from the NPWC, a survey carried out by an independent organization or another reputable source. As a general rule, getting the prevailing wage determination from the NPWC is the safest bet in case you are ever audited for being in compliance of it.
PERM advertising and recruitment can be a complex process if not handled correctly. PERM attorneys at VisaNation Law Group have a solid understanding of the regulations and can guide you through the entire process from beginning to end. If you have any further questions regarding the PERM advertising requirements or process, feel free to schedule a consultation.
