labor certification - "PERM"

All labor certifications since 2005 are filed with PERM, which stands for Program Electronic Review Management.  PERM is required to obtain an EB-2 or EB-3 immigrant visa.  PERM is the first step after the employer makes a job offer to the foreign worker.  PERM is a complex, multi-step process.  

Labor certification is not required for certain employment-based petitions, including National Interest Waivers and EB-1 petitions.   In such cases, the immigration process starts with filing the petition, rather than with the labor certification application process. 

Originally, DOL expected an electronically filed PERM labor certification application not under audit to be adjudicated in roughly 45 to 60 days. The processing time for PERM applications tends to fluctuate; up-to-date timeframes can be found at the link here. Link to Department of Labor for Processing Times for Prevailing Wage Determinations, PERM Processing, H2A and H2B Processing Times

In brief, the PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market before filing a labor certification application. If, during the recruitment process, the employer finds that there is not a sufficient number of able, qualified, and willing applicants, whether U.S. citizens or permanent residents, then the employer can submit a PERM labor certification application. 

Under PERM regulations, employers may submit the labor certification application either electronically or by mail to DOL. While employers do not have to submit supporting documents at the time of filing, they must have conducted all recruitment activities and compiled all documentation prior to filing. Employers must demonstrate recruitment activities by showing website printouts, newspaper tear sheets, and job orders.  An employer should save such documentation for five years in case of an audit or review.If DOL selects a case for auditing, the petitioning employer is required to submit all requested documents within 30 days. 

• Audit requests that go unanswered can result in the case being designated abandoned, and DOL may require the unresponsive employer to undergo supervised recruitment of labor certification applications in the future.

After DOL approves a labor certification, the employer must file an associated immigrant petition with USCIS before the labor certification’s validity period, which lasts 180 days, expires. 

An employer first agrees to sponsor an alien beneficiary for a PERM labor certification application.

• The employer then retains an immigration attorney for the purpose of filing the application, and thereby establishes an attorney-client relationship.
• The employer’s attorney collects the required information, which includes, among other items, a detailed job description and the alien beneficiary’s qualifications and work experience.
• Prior to starting recruitment, the petitioning employer registers on the PERM online filing system, following the attorney’s instructions and guidance, and assigns a sub-account to the attorney.
• Next, the attorney communicates with both the employer and prospective alien employee, drafting appropriate job descriptions and determining the requirements for the position based on a collaborative discussion.

The DOL does not allow employers to require unduly burden U.S. workers in order to hire outside labor. Were an employer to require more years of education or experience than is permitted to require, the employer may be required to justify the business necessity.  An accounting position, for example, is permitted to require a maximum of four years of experience for a Job Zone level 4 position.  If an employer requires a Bachelor's Degree, which the DOL equates to two years of experience, education, or training, as well as three years of actual experience, the employer has effectively required five years and has thus exceeded the four years permitted.  The DOL may consider the requirements to be unduly restrictive

 The DOL uses Job Zones and SVP to distinguish between low and high-skill jobs. 

• In a labor certification application, a job offer must conform the requirements of both the Occupational Employment Statistics (OES)  Job Zone levels and Specific Vocational Preparation  (SVP) levels.  An employer may need to provide a business necessity justification to DOL if  a position requires qualifications that are greater than those established by the Job Zone and SVP level.
• OES Job Zones comprise five levels, among which level 4 and 5 are most relevant to PERM applications. 
• Essentially every occupation is classified according to the various levels, which are characterized by relatively inflexible standards. For instance, occupations in Job Zone level 4 usually require a bachelor’s degree, while those in Job Zone level 5 typically require, at a minimum, a bachelor’s degree but also may require an advanced degree. 
• DOL classifies jobs that require the least amount of skill, training, or education under level 1 whereas those that require the most fall under level 5.
• Job Zone and SVP classification are interrelated. For example, a Job Zone level 4 position has an SVP of 7, while a Job Zone level 5 position has an SVP of 8. 
• According to DOL, an SVP of 7 is defined as a position requiring no fewer than 2 and no greater than 4 years of experience, education, and training combined.   An SVP of 8, on the other hand, is defined as a position requiring no fewer than 4 and at most 10 years of experience, education, and training combined. 
• To determine what Job Zone level a job being offered is, employers have to match the job duties to the same (or a similar) occupation in the OES database. Using the database is straightforward; for example, the occupation of a computer programmer falls under Job Zone level 4. 

• The Job Zone level of a position is crucial in distinguishing jobs associated with EB-2 and EB-3 visas. Consider the position of computer programmer, which falls under Job Zone level 4. If an employer intends to require a master’s degree for the position of computer programmer in order to file an EB-2 petition, DOL may challenge that the employer’s requirements are unduly restrictive because they exceed the level 4 requirements. As noted above, DOL may require the employer to provide evidence to justify the business necessity of requiring a higher level of education. 
• Employers with justifiable business needs can require education and work experience qualifications that exceed those stipulated. Such employers can proceed with filing an EB-2 PERM application, but they should be prepared to provide evidence justifying the excessive job requirements in the event DOL requests such information. If DOL requests documentation or evidence supporting an alleged business necessity, then the associated PERM application may be delayed, but as long as there is a real, justifiable business need for any excessive requirements, the application may ultimately still be approved. 

'Good faith recruitment', whih means recruitment genuinely calculated to attract any available U.S. workers, is required to demonstrate to the DOL that no willing and qualified U.S. workers applied for the job opportunity. Three mandatory advertisements are required for PERM.  

1. An advertisement with the state workforce agency in the state of intended employment.
2. Newspaper advertisements in a major newspaper of general circulation in the area of intended employment on two different Sundays. 
3. Three other advertisements and post a notice of the job opportunity at the worksite location.

All of the advertisements must be less than 180 days old at the time of filing the PERM application; therefore, we usually recommended that employers place all of the advertisements at the same time (or close to the same time) if possible. 

• The attorney finalizes then job recruitment advertisements, which include the job title, job duties, and job requirements.
• With assistance from the attorney, the petitioning employer arranges the recruitment schedule and advertises the job via proper internal and external media, in accordance with Dept. of Labor regulations. 
• The employer takes the pains to document all recruitment activities, which must be completed within a period of 30 to 180 days prior to submitting the application.
• During recruitment, the petitioning employer screens and reviews U.S. workers’ job applications and conducts phone or in-person interviews with any applicants that meet the minimum job requirements. (Note that the attorney only answers legal questions relevant to this process; he or she does not participate in reviewing or vetting job applicants.)
• If a sufficient number of qualified U.S. workers is not found for the position, then the employer is eligible to submit a PERM application.
• Next, the attorney works on recruitment reports, which are based on documentation the employer collects and maintains during recruitment.
• Once the reports are finished, the attorney prepares the online PERM application and provides a copy to the employer and the prospective alien employee for review before filing.