Find answers to all your queries about the PERM Labor Certification process. From the basics to the processing time, documentation required, and possible ways to increase your probability of PERM approval, this article got you covered with all the pieces of the PERM puzzle.
What is PERM?
PERM or Program Electronic Review Management is the permanent labor certification required for certain employment-based preference categories. When a company or an employer desires to hire a foreign national, the employer must obtain approval from the Department of Labor’s (DOL) Employment and Training Administration. This approval is called the PERM Labor Certification.
After obtaining this approval, the employer file an immigration petition with the United States Citizenship and Immigration Services (USCIS) for the foreign national employee.
There are three major steps involved in filing an employment-based immigration petition. The Perm labor certification is the first step an employer must satisfy to meet the minimum requirements for permanently recruiting a foreign national.
The PERM Process
The PERM certification process embodies four major steps:
Step 1:
The employer creates a job and formulates a job description. The job description should typically include job title, duties, minimum education and experience, supervision required, the specific location(s), and other important job-specific details.
Step 2:
Employer fulfills the prevailing wage determination requirement by requesting the prevailing wage for the position from the DOL. The prevailing wage is the minimum wage that an employer is able and willing to pay an employee and is determined by the DOL based on the specific job description.
Once this is determined, the employer must demonstrate that they are able and ready to pay the foreign national employee at least the DOL-approved prevailing wage for that position. The sponsoring employer may need to show supporting documentation such as a federal income tax return, annual report, or audited financial statement to prove the continued ability to pay the foreign national employee’s wage.
Step 3:
Upon receiving the prevailing wage determination, a sponsoring employer must place advertisements for the job to rule out the presence of a qualified U.S. worker for the role. This is known as the U.S. labor market test. The DOL regulations require that sponsoring employers ‘test the U.S. labor market’ to show that there are no qualified and willing U.S. citizens or permanent residents able to take on the jobs for which the foreign nationals are being hired.
The sponsoring employer must have recruited foreign nationals through a bonafide recruitment process. When a qualified and willing U.S. worker applies for the position, this requires the sponsoring employer to discontinue the process and wait for six months to re-test the labor market. Otherwise, the employer will be ready to have the PERM applications filed.
Step 4:
Once the sponsoring employer has fulfilled these, the final step in the PERM process is to submit the PERM application. Cases will then be reviewed by experienced analysts who are authorized to flag a suspicious case for PERM audit. When a case is flagged for PERM audit, it will be reviewed for inconsistencies relating to the entire hiring process.
A DOL Certifying Officer may request additional documentation to confirm that all due processes were followed. Considering the delays caused by COVID-19, it is difficult to specify an exact timeline for the audit process. However, it can take more than 290 days until a decision is communicated to the petitioner. Where a case is denied, a petitioner may request a reconsideration of the case by the DOL.
It is important to note that some cases are often randomly flagged for audit review just to test the validity of the PERM process.
From H-1B to EB-3 Green Card
Upon receipt of the permanent labor certification, the USCIS then classifies the foreign national as an Immigrant Worker. An employer can then submit an I-140 Immigrant Petition for Alien Workers and associated fees to the USCIS.
PERM Processing Timeline: How Long Does it Take in 2022?
The PERM processing time is determined by many factors. The days are taken for the approval of each step basically govern the PERM processing time. To map out a rough guess of the days, let’s look into each step and the underlying days required for approval:
1#Prevailing wage determination:
For the determination of the prevailing wage determination, an average of 182 days are taken up by DOL for approval. At present, applications filed in October 2021 are undergoing reviewing appeals. Once the prevailing wage determination has been done, DOL analysts review the cases, which can take additional 120 days.
2#Recruitment period:
It begins once the PWD is done and takes an average of 30-60 days.
3#Form-9089:
Once form 9089 is filed, it may take up to several months for the legal services to arbitrate PERM approvals. DOL may request an audit adding further delay to the processing. Currently, conducting audit reviews takes more than 209 days.
Thus, the average perm processing time takes about six to twelve months, depending upon the priority date assigned to each filed case.
The U.S. Department of Labor (DOL) has updated the processing times for permanent labor certification (PERM) applications on a monthly basis. In March 2022, PERM processing times were somewhat longer for the PERM applications filed than the previous month.
By the conclusion of the month, the average PERM processing times for adjudication and audit review were 182 days and 283 days, respectively.
Who Qualifies for PERM Labor Certification?
Few requirements need to be met before qualifying for PERM application:
You must already have a permanent work offer from a company or employer in the United States.
The offered pay must be equivalent to or higher than the DOL’s prevailing rate. The Department of Labor will consider this in the context of the individual job.
For a professional job, a degree higher than the bachelor’s level is required.
For competent individuals, the local work market has been examined. This is necessary to show that U.S. employees are unable to meet the position’s standards, implying that no eligible U.S. nationals are available for the post. If required, further paperwork pertaining to recruiting activities must be made accessible.
The employer in the United States is required to create and keep an audit file along with further verification of recruitment attempts.
Checking Your PERM Case Status
Waiting for the status of your case can be a nail-biter. There are a few things you can do to stay on top of the progress of your case and ensure you do not miss an important update.
- Visit the Department of Labor website to check their PERM processing times. This will help you know the application month the DOL is currently reviewing.
- Check your filing date. After filing Form 9089, you can check updates to your status on the DOL’s Permanent Case Management System.
- Call the help desk at the National Processing Center (NPC). The NPC will use your name and filing date to check if the DOL requires any more information for your application and tell you what else you need to do.
What Percentage of PERM Applications are Denied?
The Department of Labor aims to perform integrity verification on 30 percent of PERM labor certification cases, which results in more audits and supervises recruiting in these circumstances. PERM cases that are audited take longer to process and are scrutinized more closely.
Audit cases currently waiting in line for an average of 224 days have a 40% denial rate, while supervised recruiting PERM applications being processed in about 300 days have a 67 percent denial rate.
Possible Reasons for Denial:
Certain requirements laid out by the Department of labor need to be fulfilled to get your PERM applications approved. Various pitfalls exist that can immediately lead to denial. Some of the possible reasons for PERM denials are:
1#Incomplete Recruitment Efforts:
Denial can also result from missing one or more of the recruiting or advertising techniques or from failing to properly record such recruitment or advertising. Advertisements that are unclear or confusing or that are put in media that have nothing to do with the business or sector of the job might be seen as attempts to conceal the position’s availability, which can result in a denial.
Your business must be rigorous in recording all recruitment and advertising efforts, be cautious during the market test process and be transparent and honest about job availability.
2#Improper Job Description:
Sponsoring employers are required by law to truthfully represent the sponsored position’s duties, educational qualifications, experience requirements, and skill requirements. This means that an employer cannot establish unrealistically high job criteria only to dissuade anybody. This also implies that the employer cannot “tailor” work tasks and criteria to just fit the qualifications of the sponsored foreign national.
3#Incompetency of the Employer for Prevailing Wages:
An employer who sponsors a foreign national must pay the employee the prevailing salary rate for the work. The employer must also demonstrate that he is financially stable enough to pay the employee at the prevailing salary. The rule has two purposes: it prevents foreign national employees from being subjected to exploitation via lower salaries, and it prevents wage stagnation in the labor market.
Failure to present authentic financial documentation by the employer increases the risks of denial.
Options to look for after PERM Denial:
Getting your PERM request denied is more or less a dead end. However, two possible options can be opted to secure your foreign labor certification.
Option no: 1: Request for Reconsideration:
A Request for Reconsideration is one alternative. The Certifying Officer who declined the case receives a Request for Reconsideration, which must be submitted within 30 days of the denial letter’s date. By submitting a Request for Reconsideration, the employer is requesting that the Certifying Officer reconsider and reverse his or her decision to refuse the case.
The employer can only include original paperwork that was previously presented to the Certifying Officer and documentation that he had at the time of filing the PERM application but that the employer did not have a chance to present. Additional documents from the employer that would change the PERM are not permitted.
Option no: 2: Request for Appeal:
A second possible option is to file a Request for Appeal. If you or your employer feel the PERM denial was caused by a DOL error, you should file an appeal request.
Again, BALCA appeals might take a long time to resolve before a final decision is reached. Because the appeals procedure can be time-consuming, an immigration attorney may direct you to simply accept the PERM refusal and refile the PERM petition later.
When is the right time to start the PERM process for your employee?
Employers’ primary recruitment goal is to hire good talent with the best fit for the role and for the organization. While the promise of sponsorship for H1B and EB3 visas can attract great talent, employers may be better off not immediately providing sponsorship for their foreign national workers. The rationale behind this is that employers need time to determine whether an employee is a great fit for the job and for the company before investing in sponsorship of a foreign national employee.
The time an employer takes between hiring a foreign national and filing the necessary documents for the employee will enable the employee to demonstrate their skills and alignment with the demands of the job. Employers must, however, be conscious of the timeline for filing an immigration petition based on the foreign national’s status, whether L-1 or H-1B.
PERM Application Costs
The PERM petition has no filing cost with the Department of Labor. The Labor Certification charge, on the other hand, is far more than a filing fee.
There may be extra fees involved with the recruiting process, such as ad placement and time spent interviewing potential U.S. employees. Regardless, your employer is responsible for the full PERM application procedure.
The USCIS, on the other hand, charges $580 for the I-140 petition, which is the processing cost of your green card. This is a cost that your employer, not you, is responsible for. Either your employer or you can pay the premium processing fee.
Conclusion
For many people, getting a PERM (Program Electronic Review Management) certification is the first step in getting a green card sponsored by their company. The employer is responsible for completing the PERM labor certification. It assures that no qualified American employees are available for the job. All persons seeking EB2 and EB3 visas must have them.
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