What Is a PERM Labor Certification? There are several requirements that must be met before a person can be granted an employment green card in the United States. One of the most common requirements is the PERM Labor Certification. The Program Electronic Review Management (PERM) system is used to secure this labor certification and is typically the first step to obtaining permanent residence for foreign professionals. Then EB-2 Professionals with Exceptional Ability and EB-3 Skilled or Professional Worker visa classifications require a PERM Labor Certification. National Interest Waiver (NIW) cases do not require the PERM Labor Certification.
The PERM process is overseen by the United States Department of Labor’s Employment and Training Administration. This process requires United States employers to perform a series of recruitment activities to assess whether the employment of a foreign professional would detrimentally impact the working conditions and/or wages of United States citizens working in similar positions. These recruitment activities include placing a job order with SWA for at least 30 days, printing two advertisements in separate Sunday editions of a popular newspaper, and three additional recruitment methods.
A PERM Labor Certification will be granted when the employer proves that hiring a foreign professional will not negatively impact the American labor market. To secure a PERM Labor Certification, the employer must file Form 9089, Application for Permanent Employment Certification. This form can be filed electronically or via mail. According to Section 656.10(c) of the Code of Federal Regulations, the employer must confirm the following:
- The job listing was accessible to American workers
- The wages offered to the foreign professional are more than the prevailing wages for the position
- The employer has the means to put the foreign professional on payroll by the date of their arrival in the country
- That U.S. workers have not been denied for appropriate, lawful reasons
- The wages are not contingent on bonuses or other financial incentives
- The working conditions meet legal standards
- The position is full-time and permanent
- The job did not become available due to a strike or labor stoppage
Although processing times depend on a range of factors, it takes an average of 6+ months to one year to process a PERM application. Once the PERM certification is approved, the employer may begin completing Form I-140 to initiate the green card application process. It is recommended that all documentation associated with the PERM Labor Certification are kept on hand for at least five years following the application process for auditing compliance purposes.
What Are the Most Common Issues with PERM Audits?
Roughly one-third of PERM Labor Certification cases are selected at random by the Department of Labor each year for auditing. These audits are designed to ensure that PERM applicants were honest in their application, acted in good faith and that all guidelines were properly followed. Employers will be notified if they are chosen for an audit, and they will have 30 days from the date of notification to gather all necessary evidence and information. Extensions are available in certain circumstances.
Audits are typically either random or targeted. There is no way to anticipate random audits. Targeted audits, on the other hand, are triggered by issues in the application and occur when the Department of Labor identifies something suspicious about the case. Some of the most common issues that trigger PERM audits include:
- The prospective employee has an existing relationship with the employer or has ownership in the company, including stocks or equity.
- The main requirement for the position is less than a bachelor’s degree or, alternatively, the sole requirement for the position is a degree but no work experience.
- The position requires subjective skills that cannot be properly measured, such as a foreign language requirement or require credentials that are above what is typically required in the market.
- The foreign professional received prior training or experience with the employer.
Once the requested evidence has been submitted, the certifying officer will review the information and make a decision about whether or not the application is approved. If the certifying officer determines that the evidence is incomplete or inconsistent, they may deny the application altogether. An experienced immigration attorney will understand how to navigate PERM audits and ensure approval of your application.
Alcorn Immigration Law with Offices in Mountain View, CA, and New York, NY
At Alcorn Immigration Law, we work closely with employment green card applicants and their employers to secure PERM Labor Certification and respond to audit requests. Through our comprehensive services and tailored approach, we have secured approval for thousands of clients. To learn more about how we can help, consider contacting us at +1(855) 546-0015 today.