Permanent Labor Certification

The PERM process, also known as the Labor Certification process, is one of the most common ways for U.S. employers to sponsor foreign workers for green cards, or lawful permanent residence in the United States. It requires the employer to test the U.S. labor market to ensure that there are no qualified and willing American workers who want the job that is offered to the non-citizen. The employer must place a series of advertisements geared towards informing potential U.S. employees about the job and interviewing any interested applicants to see if they qualify. At Attorney Spiros Stavros Nicolet, our experienced immigration lawyers are available to guide employers in Wisconsin and beyond through every step of the lengthy PERM process.

Completing the PERM process can be overwhelming to an employer that has never sponsored a foreign worker before. There are multiple requirements that must be met in order for the U.S. government to approve an application. If the government denies the application, the employer cannot simply re-file it. Instead, it must conduct the entire process all over again, which is usually expensive and time-consuming.

The first step is obtaining the prevailing wage from the U.S. Department of Labor (DOL). This is the minimum salary that the employer must promise and be able to pay the foreign worker once he or she receives the green card.

The wage request is filed with the DOL via its website. The request form requires the employer to outline the terms and conditions of the offered job, such as the title, requirements, duties, and location where the services will be performed. The DOL uses this information to assign the prevailing wage. Once the wage is received and the employer confirms it has the ability to pay it, the process can continue to the second step.

This consists of placing the PERM advertisements and conducting the recruitment. There are three mandatory types of advertisements that the employer must place and then an additional three ads that must be placed, but the employer can choose from a list of nine possibilities for these additional ads.

The first mandatory advertisement is called the Job Order, which is placed with the state workforce agency in the state where the foreign worker would perform the job duties for the PERM position. This ad must run for 30 days. The second and third mandatory advertisements consist of two newspaper ads that must run in two consecutive Sunday editions of the major newspaper in the area that the job position will be located.

The employer also must choose three options from the following list:

• Placing an advertisement on the company’s website;
• Recruiting applicants at a job fair;
• Engaging in an employee referral program that provides incentives to current employees for recruiting new hires for the company;
• Using on-campus recruiting at a local college;
• Listing the position with a private employment firm;
• Placing a radio or television advertisement;
• Placing an advertisement with the campus placement office of a local college;
• Placing an advertisement with a trade or professional organization; and
• Placing an advertisement with a local or ethnic newspaper.

Along with these ads, the employer must also post a notice of the PERM recruitment in its office or provide notification of the recruitment to a union representative if a union exists for the offered job position.

Employers are advised to place all of the advertisements as soon as possible because the PERM application cannot be filed if any of the ads is older than 180 days. Additionally, the employer must wait 30 days after the Job Order ends and after the two Sunday newspaper ads expire before the employer can file the PERM application.

The application is called the ETA Form 9089, and it is filed with the DOL, just like the prevailing wage request. The ETA Form 9089 explains to the DOL the nature of the offered job and the recruitment that the employer conducted. It is also certifies that the employer did not receive a resume from a qualified and willing U.S. applicant.

Currently, it takes the DOL approximately five months to take action on a PERM application. The DOL may approve the PERM, the DOL may deny the PERM, or the DOL may audit the PERM. If a PERM is audited, the DOL sends a request for specific information and documentation to the employer that filed the PERM. The employer must send the requested information to the DOL by the deadline stated in the Audit Notification. After the DOL receives the information, it will review the new documentation and then make a final decision on the PERM.

If the DOL denies the PERM, the employer can request that the DOL reconsider its decision. If the DOL denies the request, it will forward the request to the Board of Alien Labor Certification Appeal (BALCA). BALCA will make the final determination on whether to uphold the DOL’s decision to deny the PERM or to reverse the decision and instruct the DOL to approve the PERM.

The PERM process is just the first step in sponsoring a foreign worker for a green card. After the PERM is successfully completed, the employer must also file an I-140 Petition, and then the employee must file the I-485 Application to secure this status.

From their Wisconsin offices, the immigration attorneys at Attorney Spiros Stavros Nicolet have assisted many U.S. employers and foreign workers in completing this complex sponsorship process. We can help you keep up with the appropriate deadlines and collect the necessary paperwork to pursue legal status. If you are interested in the PERM process, you can call us at 773-562-6884 or complete our contact form to set up an appointment. Spiro Nicolet and the rest of our staff have the diligence and attention to detail needed to assert your rights.