PERM – the Path to a Green Card via Employer Sponsored Labor Certification Through PERM

There are three basic steps in the Green Card process through Employer Sponsorship:

1.  Labor Certification through the PERM process – PERM (Program Electronic Review Management) is the process for obtaining labor certification.  An employer must test the United States employment market in order to demonstrate that the employer could not find any minimally qualified United States workers willing to accept an open position that is offered at a wage equal to or greater than the prevailing wage for similarly employed workers.  The United States employer must first request a prevailing wage determination from the State Workforce Agency having jurisdiction over the intended area of employment. On ETA form 9089 the employer is required to provide the following: the prevailing wage; the prevailing wage tracking number (if applicable); the SOC/O*NET (OES) code; the skill level; the wage source; the occupation title; their determination date; the expiration date; the proposed wage for the alien.

Generally, the employer must prove through recruitment methods such as newspaper ads that they were not successful in their attempts to recruit a qualified United States worker for the offered position.  A job order and 2 print advertisements are required for all applications for professional occupations, except applications for university or college teachers seleceted in a competative selection and recruitment process.

For professional occupations the employer must also select 3 additional recruitment steps from alternatives such as job fairs, the employer’s web site, a job search web site, on campus recruiting, trade or professional organizations, private employment firms, employee referral programs with incentives, campus placement officers, local and ethnic newspapers, radio ads, televisions ads.  The job opportunity must not be unduly restrictive, unless there is a business necessity for it.  For professional job positions more than one additional recruitment step needs to be conducted less than 30 days from the date the application was filed.  PERM applications are complicated and it is recommended that you hire an experienced immigration lawyer.  I recommend attorney Sufen Hilf of the law firm Hilf & Hilf, PLC.

The employer must recruit under the standards for professional occupations set by federal law.  Some occupations require a bachelor’s degree or higher.

For nonprofessional occupations, the employer must at a minimum place a job order and 2 newspaper advertisements within 6 months of filing the application.  The advertisement must run on 2 different Sundays in the newspaper of general circulation in the area of intended employment that is most appropriate to the occupation and the workers that are likely to apply for the job.  The advertisement must: name the employer; direct the applicants to report or send resumes to the employer; provide an description adequate enough to appraise United States workers of the job opportunity; indicate the geographic area of employment, any travel requirements, and where the applicant would need to reside to perform the job; not contain a wage lower than the prevailing wage rate; not contain job requirements that exceed the job requirements or duties listed on ETA form 9089; not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

The employment of the alien must have no adverse effects on the wages and working conditions of similarly employed United States workers.  If there are no United States workers willing to accept the open job position that are identified as a result of the above described process, the PERM application can be filed with the United States Department of Labor.

The United States Employer must prepare a recruitment report signed by the employer describing the steps taken in the recruitment process, the results achieved from the recruitment process; the number of people hired; and if applicable the number of person rejected with lawful reasons for the rejections.  The Certifying Officer can request the resumes and applications received, with the reasons why the workers were rejected.  If the worker can acquire the necessary skills during a reasonable period of on the job training, the rejection is not a lawful job related reason. A foreign language requirement is not allowed unless there is a business necessity that justifies the requirement.

A denial of the application for labor certification can be reviewed by the Board of Alien Labor Certification Appeals (BALCA).  BALCA can affirm the decision, order the Certifying Officer to approve the labor certification, or remand the matter to the Certifying Officer for reconsideration of the decision along with instructions for doing so.

2. I-140 Immigrant Petition for Alien Workers – Once the PERM application has been approved by the appropriate National Processing Center, the employer is permitted to file an I-140 petition on behalf of the potential alien employee with the USCIS.  The employer must be prepared to provide proof that the employer can pay the offered wage through federal tax returns, and company reports or audited financial statements.  The potential alien employee must also provide evidence that they meet all of the requirements listed on the PERM application

3.  I-485 Application to Adjust Status – the final step is for the employee to file the I-485 application to adjust status (along with qualifying dependent family members) from non immigrant status to legal permanent resident status (green card).  The alien worker and family members may apply for work authorization and advance parole travel documents along with their I-485 applications.  The alien also is not prohibited from requesting consular processing of the visa petition rather than filing a I-485 application to adjust status.