PERM: Understanding the Basics of Recruitment

The Program Electronic Review Management (PERM), also known as Labor Certification process, is an essential step for the employer looking to hire a foreign worker on a permanent basis. It is a first step of a three-step process and is filed with the Department of Labor (DOL). This article explains the basic principles of PERM recruitment processing, emphasizing the distinct requirements for professional and non-professional positions.

What is PERM?

PERM refers to the electronic process for filing labor certification, the first step in the green card process for foreign nationals seeking permanent residence through employment. It requires employers to demonstrate that there are no able, willing, qualified, and available U.S. workers available for the position being offered to the foreign worker, and that the employment of the foreign worker will not negatively impact the wages and working conditions of similarly employed U.S. workers.

PERM Recruitment Requirements

The PERM process mandates rigorous recruitment efforts by the employer to test the labor market before filing the labor certification application. The DOL delineates specific recruitment steps depending on whether the job opportunity is categorized as professional or non-professional.

Non-Professional Positions

Non-professional positions are those that do not require a bachelor’s degree or higher as a minimum educational requirement. For non-professional postitions, the DOL mandates the following recruitment steps:

1. Job Order: Employers must open a job order, for a minimum of 30 days, with the state workforce agency (SWA) where the job is located.
2. Newspaper Ads: In addition to the Job Order, the Employers are required to place two Sunday advertisements in a newspaper of general circulation at the place of intended employment.
3. Additional Recruitment: No additional recruitment steps are required for non-professional positions beyond the job order and newspaper ads.

Professional Positions

Professional positions are defined by the DOL as those for which the attainment of a bachelor’s degree or higher is a usual educational requirement. For Professional position DOL mandates that the employer completes the following recruitment steps in addition to those required for non-professional positions:

1. Job Order and Newspaper Ads: Similar to non-professional positions, a 30-day job order and two Sunday newspaper ads are mandatory.
2. Additional Recruitment Measures: In additional to the above, employer is obligated to choose three additional recruitment methods out of a list of 10 options provided by the DOL. This list includes job fairs, employer’s website, job search website other than the employer’s, on-campus recruiting, trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and television advertisements.

Recruitment Timeframes and Filing Deadlines for PERM

In order to successfully navigate the PERM recruiting process, time constraints and deadlines must be strictly adhered. In order to ensure that all recruiting efforts are current, the recruitment process must be started no earlier than 180 days prior to submitting the PERM application. In particular, the last recruiting step must take place at least 30 days in advance of the application submission, but no earlier than 180 days before PERM submission. This timeframe ensures that the labor market test is current and accurately reflects the present job market conditions.

Employers must meticulously document their recruitment efforts, retaining evidence such as job orders, newspaper ads, and records of additional recruitment steps for professional positions. Keeping a record of this is essential if the DOL conducts an audit.

Prevailing Wage Validity and Recruitment Commencement

A critical aspect of the PERM process is the Prevailing Wage Determination (PWD), which sets the minimum wage that can be offered for the position. Before commencing the recruitment process, employers have to obtain a Prevailing Wage Determination (PWD) from the DOL.

It is imperative that the PWD is valid at the time of filing the PERM application. Employers have the option to commence recruitment activities either before or after obtaining the PWD. However, to ensure compliance with Department of Labor regulations, the offered wage listed in the recruitment efforts must meet or exceed the PWD issued later. This ensures that the wage offered to the foreign worker is commensurate with the wages paid to similarly employed workers in the geographic area of intended employment.

Application and Audit

Upon completion of the recruitment process, the employer files the PERM application, electronically, with the DOL. If selected for audit, the employer must provide the documentation of their recruitment efforts and any other information requested by the DOL.

Conclusion

The PERM recruitment process is a critical component of the U.S. labor certification process, designed to protect U.S. workers’ jobs and wages. Understanding the distinct requirements for professional and non-professional positions enables employers to navigate the PERM process efficiently and comply with all regulatory obligations. By adhering to the DOL’s stringent recruitment and documentation requirements, employers can successfully sponsor foreign nationals for permanent employment in the United States.