PERM LABOR CERTIFICATION

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 the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL 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 and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

More than a decade ago, in March 2005, the DOL implemented a new system for filing labor certification applications called Program Electronic Review Management (PERM). Under PERM, employers may submit an application for permanent employment certification (Form ETA 9089) directly to the DOL either online, or by mail. The DOL adjudication time-line keeps on changing but typically ranges between  three to ten months.

Prior to filing a PERM application, the employer must (i) obtain a prevailing wage determination from the National Prevailing Wage Center; and (ii) conduct the necessary recruitment steps. The sponsoring employer is required to pay 100% of the prevailing wage. The PERM regulations state that the employer may add any “guaranteed” bonuses or commissions to the salary to meet the prevailing wage. If the bonus or commission is not “guaranteed”, it cannot be added to the specified wage.

The recruitment steps required for a position vary according to whether the occupation is classified as “professional” or “nonprofessional.” For most occupations, the employer must (i) place a 30- day job order with the appropriate State Workforce Agency, (ii) place advertisements on two different Sundays in the newspaper of general circulation in the area, and (iii) post a notice of the job opportunity for ten consecutive business at the location where the person will be employed. For professional occupations (with some exceptions for certain college or university teachers), the employer must also select at least three from ten alternative recruitment methods.

The recruitment efforts must be conducted no later than 180 days and no earlier than 30 days prior to filing the PERM application. For professional occupations, one of the alternative recruitment methods may be completed within the 30-day period prior to filing the PERM application.

Supporting documentation may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.

The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the NPWC prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.

The employer has the option of filing ETA Form 9089 electronically (using web-based forms and instructions) or by mail. However, DOL strongly recommends that employers file electronically.