Most persons who obtain permanent resident status based upon employment must first obtain a certification from the Secretary of Labor that their employer has tested the labor market and has been unable to find qualified U.S. workers. This process, known as “labor certification” or “PERM,” involves the placement of two newspaper advertisements as well as posting of the job’s availability both at the job site and with the state workforce agency; and in the case of jobs which require a bachelor’s degree, evidence of at least three additional forms of recruitment selected from a list of options provided by Department of Labor (“DOL”) regulations. The employer submits the application online and must maintain documentation relating to the recruitment, including a post-recruitment report detailing the objective reasons for the rejection of any applicants, for a period of at least five years.
The PERM process requires a combination of mandatory forms of recruitment as well as additional, “employer’s choice” recruitment from a list of other possible methods. Employers must analyze any U.S. workers responding to these forms of recruitment to see if they meet the minimum requirements for the offered position as stated in the job description, which must be reasonable in light of the specific job duties and generally accepted industry standards. To ensure the PERM application would not adversely impact wages and working conditions of U.S. workers, PERM also mandates that the employer obtain a government-issued prevailing wage and requirements determination and provide specific worksite notice to all employees that a PERM application is being filed, along with the full details of that position.
Upon completion of the required recruitment, notice, and waiting period steps, the sponsoring employer files the PERM application form, online, with the Department of Labor, essentially “on the honor system.” The strict timing requirements of the PERM process dictate a minimum of two months and a maximum of six months from the very first recruitment step to PERM form filing. However, the Department of Labor may “audit” any sponsoring employer, for any reason (including random checks) by requiring documentation that the employer performed all required recruitment, wage and requirement determination, worksite notice, and applicant evaluation steps.
Since PERM is merely a test of the U.S. labor market, employers are not required to hire any qualified, willing, able, and available U.S. workers discovered in the recruitment process. However, if the sponsoring employer does find an appropriate U.S. worker, and there are not multiple positions open, then the labor certification process cannot move forward. Recruitment can be conducted again in the future, should the employer wish to re-test the U.S. labor market.
Current PERM processing times are available at: https://flag.dol.gov/processingtimes