The United States offers many paths to citizenship, each with its own complex, multi-step process. Among the best ways to obtain the much-vaunted “Green Card” is through employment visas such as the EB-2 (for applicants with advanced degrees or extraordinary ability) and EB-3 (for skilled laborers, professionals, and other qualified workers).
Proving you meet the stringent criteria for these visas can be challenging enough, but before anything can get started, your U.S. employer must first complete the “PERM” process—often considered one of the most complicated and onerous steps in acquiring an employment-based Green Card.
An Overview of the PERM Process
Short for “Program Electronic Review Management,” PERM is designed to protect American jobs by requiring employers to prove that no U.S. worker (whether citizens or legal permanent residents) can fill the position being offered to a foreign national.
Specifically, an employer must obtain an approved labor certification from the U.S. Department of Labor (DOL) before they file an I-140 petition on behalf of the immigrant worker.
In essence, the DOL’s labor certification gives U.S. Citizenship and Immigration Services (USCIS) the greenlight to process the immigrant petition.
To complete the PERM process, an employer must fulfill these three steps:
- Submit a request for a Prevailing Wage Determination (PWD) to DOL;
- Advertise and run a recruitment campaign compliant with PERM regulations; and
- File a PERM with DOL for certification.
Moreover, the employer must provide a detailed job description of the job position, including a daily breakdown of the duties; required levels of education, experience, and skills; and whether there are special responsibilities such as travel and serving a supervisory role.
Step One: Prevailing Wage Determination (PWD)
The purpose of the PWD is to ensure that hiring a foreign worker for the permanent position will not adversely affect U.S. workers. Thus, the employer must pay the foreign worker the “prevailing wage,” defined as the average wage of similarly employed worker in the specific occupation, and within the geographic area, of intended employment.
To request a prevailing wage determination, employers must complete Form ETA-9141 (Application for Prevailing Wage Determination) and submit it to the National Prevailing Wage Center (NPWC) of the DOL. The form must be carefully completed, as even one typo or blank space could result in its rejection.
Step Two: Recruitment Activities
Within 30 to 180 days before filing the PERM application with the DOL, the employer must demonstrate their efforts to recruit U.S. workers. The means of recruitment must adhere to PERM regulations and certain DOL standards, which set forth how, when, and even where job advertisements are to be placed. The requirements are as follows:
- One job order placed with a state workforce agency;
- Two Sunday advertisements in a newspaper of general circulation in the area of employment;
- One internal posting notice; and
- Three additional advertisements from a predetermined list of options.
During the recruitment process, the employer must consider any applicants that meet the required criteria and determine if they are qualified to fill the position. However, an employer can reject an applicant if they determine that:
- The U.S. applicant does not meet the minimum requirements of the position; and
- Any deficiencies cannot be resolved through reasonable on-the-job training.
The employer must fully document their recruitment efforts and prepared to submit this evidence in the event of an audit or a request from the Certifying Officer prior to rendering a final determination.
Step Three: File the PERM Application with DOL
If, after all these efforts, the employer is unable to find qualified U.S. applicants, the employer can finally submit ETA Form 9089, Application for Permanent Employment Certification. Through this form, the employer affirms that:
- No U.S applicant is able, qualified, and willing to accept the job offer at the standard salary for the position in the area the employer intends the foreign employee to work; and
- Employing the foreign worker will not negatively impact the wages nor the working conditions of similarly employed U.S. workers.
ETA Form 9089 must be carefully and entirely completed before submission: Any unfilled answer boxes, factual errors, or even typos cannot be corrected once the form is filed—and may result in your application being rejected without the possibility of reconsideration.
Generally, the entire PERM process can take anywhere from eight to 15 months, depending on DOL processing times and your strategy. Once it is successfully completed, your application will be certified by DOL, and must be submitted to USCIS with your I-140 petition.
Timing is of the essence, as the certification has a validity period of 180 days (starting from the date ETA Form 9089 was received), after which it will expire and be rejected by USCIS.
Work with an Immigration Lawyer from Jurado & Associates, P.A.
Acquiring a Green Card through an employment visa requires a lot of time, paperwork, and strategy. As even this brief overview should make clear, the PERM application alone is a process onto itself, requiring careful planning, a meticulous attention to detail, and a firm understanding of DOL regulations.
Whether you are a U.S. employer in need of qualified foreign labor to expand your business, or a foreign national seeking unparalleled opportunities in the United States, Jurado & Associates, P.A. is here to help. Our Immigration Attorneys are not only experts in employment visas, including the PERM Process, but bring firsthand experience as immigrants and entrepreneurs themselves.
Our knowledge and love of the law is matched only by our deep appreciation for the challenges facing our clients. That is why our attorneys make the effort to understand your situation, needs, and goals so that we can better serve you. To learn more about what we can do for your business and aspirations, do not hesitate to call (305) 921-0976 or email firstname.lastname@example.org.