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One of the most crucial first steps to getting most employment-based green cards in the U.S. is the PERM Labor Certification. While not all work green cards require it, many of the more popular ones have it as a prerequisite to filing an I-140. It works to protect the jobs and working conditions of the U.S. citizens already working in the country as well as make sure that the system is not being taken advantage of to allow under-qualified foreign candidates to flood the market. The major portion of this process involves having the employer go through a PERM recruitment period. Find out everything you need to know about this delicate and precise method here.
A permanent labor certification, issued by the Department of Labor (DOL), allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA).
Prior to submitting a labor certification application, the U.S. employer is required to conduct a PERM recruitment process for the available position. The PERM recruitment process must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment.
It also has been put in place to ensure that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The DOL has specific regulations that direct the recruiting efforts required for sponsoring an employee.
Firstly, the PERM recruitment requires an employer to differentiate between a professional and non-professional position. This distinguishment directs the minimum level of education required for a classified professional or non-professional.
The minimum level of education for a classified professional is a Bachelor’s degree; however, the Department of Labor may classify an available position as a professional occupation whether the employer originally indicated it or not. The specific DOL regulations direct the types of recruitment and the content of the advertisements.
The PERM recruitment processing time will vary depending on the position and whether it is categorized as a professional or non-professional. U.S. employers filing for the regular PERM Labor Certification must submit recruitment documents at least 30 days, but no more than 180 days, before the filing of the application.
If the documents are filed past due or the recruitment process is conducted inaccurately, the application has a high risk of denial or of receiving an audit notice.
Mandatory Recruitment Requirements for Professional Careers:
PERM Recruitment Requirements for Non-Professionals:
The PERM recruitment advertisement for the available position is not mandated to list an in-depth description of job responsibilities. However, it does need to be clear and precise. In addition, the job requirement shall not be tailored to the worker’s qualifications and must adhere to the industry norm. Furthermore, the job description shall not be unduly restrictive – unless compelled by business necessity.
The employer must promptly respond to any qualified resumes or applications submitted for the advertised position. Failure to manage all inquiries, résumés, job applications and interviews for all qualified applications can negatively impact the PERM process.
The Department of Labor understands that, because the reports are provided by the employer, the PERM recruitment process can easily be taken advantage of. To combat this, the Department regularly conducts two types of audits:
Targeted – these audits are triggered by certain red flags that might come up during a recruitment period such as the employee and employer being related, extraordinary requirements for the position to deter applicants, or the immigrant employee being underqualified. Targeted audits can be avoided by keeping your PERM regulations above board.
Random – these serve to add uncertainty to the recruitment process in order to help ensure that the PERM is not abused. They cannot be avoided and you should perform your PERM recruitment with the knowledge that a random audit could be sent to you.
If you are a PERM applicant, the Department of Labor will assign you a Certifying Officer (CO) to look over and adjudicate your case. The CO can request a targeted audit at any time during the review process. If an audit is requested, you can’t simply withdraw the application—you must respond or face serious consequences. For this reason, you should avoid any PERM recruitment practices that could result in an audit.
Getting an audit can easily add nine months to over a year to your PERM processing time. While random audits are unpredictable, you can take steps to avoid targeted ones. Having an immigration attorney help you through the PERM recruitment process can help.
If you do not respond to the audit notice appropriately or your response is otherwise not satisfactory, your CO may request supervised recruitment to be conducted. This means that the Department of Labor will oversee a PERM recruitment period for your employer, which may entail going through a second recruitment.
This is a time-consuming and demanding obstacle that is targeted rather than random, which means that it can be avoided. Each step of the recruitment process from the job postings to the interviews, will need to be documented and sent to the DOL before moving forward. All resumes, applications, job descriptions, and reports will need to be submitted to the Department. Your ads will also need to be approved by your CO who will likely also choose the placing of those ads.
To avoid this issue, you should work with your immigration attorney to respond quickly and appropriately to an audit request and make sure that your recruitment process is always legitimate. Any attempts to alter reports or skew the applicants will become apparent in an audit or a supervised PERM recruitment period.
It is not uncommon for the employer to find a suitable candidate during the PERM recruitment process. After all, the purpose of the process is either to find a suitable worker and, if not, then bring one from abroad.
However, what are the implications of an employer finding a qualified candidate during PERM’s 30-day advertisement requirement? There are two avenues that this scenario might take.
In general, the PERM application process can be split into three major categories. Firstly, the employer must receive PERM labor certification, which includes the requirement process described in this article. Secondly, the employer must submit Form I-140 Immigrant Worker Petition to the USCIS along with the required documentation. Lastly, once I-140 is approved worker must submit Form I-485 and comply with the immigration regulations. The below chart explains where the recruitment requirement falls into the PERM application process:
The PERM process is a time-consuming and complex part of the employment-based green card rules. While that cannot be avoided, there are ways to help prevent unwanted obstacles like supervised recruitments and audits. By taking advantage of the help of an immigration attorney, you can pave the road for an easier PERM recruitment process.
VisaNation Law Group attorneys have years of experience helping employers go through PERM recruitment while avoiding targeted audits and supervised recruitment. Let us help you protect your investment and increase your chances of success. To get in touch with one of their PERM lawyers, you can fill out this contact form and schedule your consultation today.
