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Basics about Labor Certification – “PERM” Applications
Under certain employment-based preference classifications the sponsoring U.S. company must first obtain a determination that there is not a qualified U.S. worker who is available and willing to take the job under the terms offered. The reasoning is that employers in a country should attempt to employee that countries workers before the position is offered to others. In light of that reasoning you can understand the purpose for such a requirement. If any qualified U.S. worker applies for a particular position no labor certification/PERM can be issued. Without such PERM issued, For those employment-based classifications requiring approval of the PERM application the alien worker may not receive his or her U.S. permanent residence.

In order to determine whether or not there are qualified U.S. workers for a particular position the company must 1st attempt to recruit U.S. workers to fill the position. After the recruitment process if the company has not been able to find qualified persons to fill the position then the job may be offered to a foreign worker. In such case everyone benefits and no one is harmed. Since the company was not able to find a U.S. worker who had the appropriate qualifications in order to carry out the responsibilities of the job, it is apparent that the job would not have been offered to American worker anyway. Further, the company benefits because it may now employee an individual who has the qualifications needed for the job. The foreign worker also benefits because he or she may receive the green card and thereafter be employed In that position.

The 1st question is What is the basis for determining that there were no qualified U.S. workers. there are specific rules and procedures that must be met to do so. The U.S. Department of Labor makes the final determination whether or not the recruitment process was followed and that the employer’s determination that it could not find a qualified U.S. worker was reasonable. The determination made by the Department of Labor has been called the “Labor Certification.” the process is now referred to as “PERM.” It used to be commonly mistaken that a labor certification was the same as employment authorization. They are not the same. Obtaining a labor certification, which is the 1st step in the three-step process of applying for the green card, gives the person no legal status, nor is it employment authorization.

Formally, the PERM issuance is a determination that the employer complied with certain filing and recruitment requirements, thus showing that the employment of a foreign worker in the specific offered position will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employers need to prove that, despite completing the required recruitment campaign, they could not find a willing and minimally qualified U.S. worker to fill up the applied position.

Length of PERM processing
When the PERM process was 1st implemented processing of the cases was very quick – approximately one to 2 months. Recently, however, the process has begun to bog down and PERMs are now taking approximately 6 months, and assuming no audit has been initiated for that application. Audited perms can take anywhere from at least an additional 6 months to over 1 year before a determination is made. Realistically, the recruitment prior to filing the PERM application is approximately 3 months. fastest that an application can be filed is theoretically 60 days. However, a salary determination must 1st be obtained, and it takes anywhere from a few days to a few weeks for the job order to be placed with the state employment commission. The job order itself must run for at least 30 days, and thereafter the application may not be filed for another 30 days. Thus, 3 or more months is a more realistic estimate of the time it will take to complete the recruitment process prior to filing the PERM application.

The time for the recruitment must be taken into account when considering when the green card application should be filed. If a person on an H-1B visa is in the 5th year holding an H-1B, then there may not be enough time to get the PERM filed in order to extend his H-1B beyond the normal six-year limit. Generally, there May be little reason to wait beyond the 1st 6 months or year before the application for the green card is started. (Note: this is a general statement. Factors such as the financial condition of the sponsoring company or the current unemployment rates in the locality should all be taken into consideration in the initial planning of the H-1B and green card strategies. Because of the number of rules and procedures involved in a PERM application, and because of the number of factors that may affect the success of the outcome of an application, an experienced immigration attorney should be retained.

PERM: Job Recruitment Requirements
For those EB classifications that require a PERM application to be filed, there are specific steps that must be taken to attempt to recruit U.S. workers. There are 2 levels of recruitment that apply depending upon whether or not the position is considered “professional.”

For all jobs the following 3 steps must be taken:
1. Job Order
For both professional and non-professional jobs, the employer must place a job order for the job opportunity with State SESA (generally, the state employment commission) for a period of 30 days. The job order is entered into the state’s database listing available jobs. The database is accessible by the general public, and the database contains a listing of available jobs for which the applicants may apply. Each state maintains its job bank listing the job openings. The job order is submitted by the employer to the employment commission, and the employment commission then enters the job description into its databank. The job is listed for a period of 30 days, at which time the employment commission removes the job. The starting and ending dates of the job order must be listed in the ETA 9089.
2. In-House Posting
An internal posting is required to notify other employees of the company of the availability of the position. Those other employees may apply for the position, or the many notify the Department of Labor of any questionable practices regarding recruitment. Regulations require that the posting remain in a clearly visible place for at least 10 business days. for practical purposes. It is suggested that the notice be left posted for at least 2 weeks. One problem that sometimes arises is that the regulations require the notice to include the offered salary.
3. Two Sunday Advertisements
The employer must place classified ads in the available jobs section of the local newspaper. The ad must run for two Sundays. It is not required that the ad run during the week; it need only be run in to Sunday editions of a local newspaper of general circulation in the area of intended employment.
4. Mandatory Use of Available In-House Media
Whether it’s for professional position or not, the employer must use any and all other available in-house media, electronically or printed, in accordance with normal procedures used by the employer for similar positions in the business. For example, if the employer ordinarily posts job opportunity in the company’s website, it is then mandatory to post on it for the applied-for position. If the employer does not normally use any other in-house media, the employer does not need to create one.

Three Additional Recruitment Steps for Professional Jobs
“Professional jobs” are generally those which require a minimum of a four-year baccalaureate degree. For professional jobs, in addition to the recruitment methods listed above, the employer is required to to carry out at least three additional recruitment steps from the following 10 allowed methods:
1. Job fairs
2. Employer’s web site
3. Job search site other than employer’s
4. On-campus recruiting
5. Trade or professional organization
6. Private employment firms
7. Employee referral program, if it includes identifiable incentives
8. A notice of the job opening at a campus placement office, if the job requires a degree but no experience
9. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
10. Radio and TV advertisement
Only one of the additional recruitment steps may take place within 30 days of filing. Dates and methods of each step must be listed in the filing