Wednesday, January 11, 2012

Immigration 101: The Fundamentals of PERM

This article addresses the fundamentals of obtaining a green card through "PERM," or Program Electronic Review Management.  If you are currently working for an employer in a visa category that allows you to apply for a green card through PERM, this article provides important information that you should know regarding the PERM process.  This article is not meant to be a comprehensive analysis of the PERM process.  It merely provides a context for which you can begin to understand what PERM is generally and some of the requirements during the process.

PERM Overview: The "Quick 'n Dirty" Review

On December 27, 2004, the Department of Labor (DOL) issued regulations implementing PERM. PERM is an expedited way to obtain a Labor Certification (LC) based on a job offer. The overall goal of implementing PERM was to shorten the processing time of LCs from several years to only 45-60 days.  Here is a quick and dirty (QND) outline of the process:

The Prevailing Wage Determination ("PWD"): The first step in any PERM application is to obtain from the State Workforce Agency ("SWA") office a prevailing wage determination. This tells the employer what they must pay the employee when the green card is approved.  Note that the employer must pay 100% of the prevailing wage from the time permanent residency is granted or from the time the alien is admitted to take up the employment.  The PWD is also used throughout recruitment so it is important to plan early and obtain the prevailing wage as soon as possible.

The Recruitment Process: During what is known as recruitment, an employer must (i) post a notice of the job offer at the employer's location, (ii) place a job order with SWA (i.e., in Ohio, the Ohio Department of Job and Family Services), (iii) place two Sunday advertisements in a newspaper of general circulation in the area of intended employment (in Columbus, Ohio, that means placing an ad in the Columbus Dispatch); and (iv) performing alternative recruitment, if necessary.  These steps must be done between 30 to 180 days before filing the LC.  The alternative recruitment referenced above is only necessary for professional jobs.  In such case, three of the following alternative recruitment steps must be taken, such as: (1) job fairs, (2) employer’s website; (3) job search web site (other than the employer’s); (4) on-campus recruiting; (5) trade or professional organizations, or private employment firms; (6) employee referral program, with identifiable incentives; (7) notice of job opening at a campus placement office; (8) local and ethnic newspapers; or (9) radio and television advertisements.

Filing the Labor Certification: Once recruitment is completed, the attorney will prepare the LC for filing.  The LC is filed either electronically through PERM or by mail with the appropriate Employment and Training Administration Processing Center.  It is prepared on ETA Form 9089.  Along with preparing the LC, the attorney will prepare a PERM Audit File for the employer to keep in case the DOL asks for proof that the position qualifies.

Miscellaneous PERM Information

Employment Classifications Under PERM: Generally, there are two major categories of positions that qualify for PERM.  The first are non-professional/skilled jobs.  These can be chefs, cooks, laborers, etc. and generally only qualify under the EB-3 category.  The second are professional jobs requiring attainment of a bachelor’s or higher degree, or a combination of both education and experience.  These positions qualify as either EB-2 or EB-3 depending on the educational and experiential attainment.

Must Be Full-Time, Bona-Fide, Permanent Job Opportunity: PERM is for bona-fide, full-time, permanent positions. It is not for part-time employment.  To demonstrate that a “bona fide” job opportunity exists, the employer must demonstrate that is qualifies by such things as having employees on payroll, a valid Federal Employer Identification Number ("FEIN"), and no adverse factors.  Familial relationships are particularly troublesome.  If you own a business and are thinking of filing a PERM case for someone in your family, consult an attorney.

DOL Audit and the Importance of the Audit File: The Certifying Officer (CO) reviewing the LC may request an audit of any LC either for cause or at random. Upon receipt of the employer’s response, the CO may also request additional information and/or document(s) or require that the employer conducts supervised recruitment. This is why it is very important that an attorney prepare the PERM Audit File.  Upon request by the CO, an employer would simply provide the audit file to the CO as the audit file is already supported by documentary evidence.

How Are LCs Approved?  The decision to certify an LC is based on whether the employer demonstrates that there are no U.S. workers who are able, willing, qualified, and available for the job opportunity. The CO must also consider whether the wages or working conditions of U.S. workers similarly employed will not be adversely affected by the employment of the alien.  The CO must also determine that the actual position meets the requirements of the employment-based category being sought (i.e., were the requirements drafted such that they meet EB-2 or EB-3 category?) and that the employee's credentials meet the requirements for the position (i.e., does the employee have a bachelor's degree plus five years experience to meet the EB-2 category?).   Finally, a CO will look at whether the employer met the strict recruitment guidelines.  If, for example, a job order was placed 190 days prior, the deadlines would not be met warranting a CO's denial. 

File the I-140, Petition for Alien Immigrant and Green Card: Upon approval of the labor certification, you are eligible to file for the Immigrant Petition (I-140).  Your visa availability determines when you can file for your actual green card (Form I-485).  Some people's green cards are immediately available upon the approval of the LC such that they could file the I-140 and I-485 concurrently.  Included in the filing of the I-485 is the application for employment authorization document (i.e., the "EAD" or work permit filed on Form I-765) and the application for advanced parole travel document (filed on Form I-131).

Contact Matthew R. Porter, Esq.
If you have any questions regarding the PERM process, please contact attorney Matthew R. Porter today.  Send me an email via the contact information to the right or go to our website for more contact information.  I am always available to discuss your PERM questions and options.