The final PERM regulation took effect on March 28, 2005. PERM cases are filed on an ETA Form 9089, which can be filed electronically or by mail. No other documentation will be filed with an initial application. Prevailing wage, recruitment and notice documentation must be retained by the employer for five years after filing the labor certification petition. The Department of Labor possesses the right to audit any petition. As such, it is crucial that employers maintain all recruitment results and supporting documentation for PERM cases.
Mandatory Recruitment Efforts
Recruitment for labor certifications covering professional occupations (or those which typically require a bachelor's degree) must include placement of a job order with the SWA in the area of intended employment for 30 days. The employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. These steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application.
Content of the Ads
The ads must include the name of the employer and must direct applicants to report or send resumes to the employer. The ads must also provide a description of the vacancy specific enough so the U.S. worker will understand the nature of the job opportunity, and must also indicate the geographic area of employment with enough specificity to let the U.S. worker know of any travel requirements or potential relocation.
Additional Recruitment for Professional Positions
The employer must also select three additional recruitment steps from the following alternatives:
Employer's web site;
Jobsite website other than the employer's (i.e., www.monster.com);
Trade or professional organizations (i.e., copies of newsletters containing ads);
Private employment firms;
Employee referral program with incentives;
Campus placement offices;
Local and ethnic newspapers;
Radio and television advertisements.
10-Day Posting Notice
The employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive business days. The employer must also publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The notice must explain that it is being provided because the employer is filing a labor certification; that any person may provide documentary evidence regarding the application to the certifying officer (CO) of the DOL; and provide the address of the CO. Notices must also contain the information required for advertisements and must state the rate of pay.
Different requirements apply for employees who are represented by bargaining representatives.
The employer must prepare and sign a recruitment report, which describes the recruitment steps undertaken and the results achieved. It must set forth the number of persons hired, the number of U.S. workers rejected and the lawful job related reasons for such rejections. The names of the U.S. workers are not required to be included on the recruitment report, however, the CO may request the resumes of the rejected workers sorted by the reasons that the workers were rejected.
The foreign national and any attorney representing the employer are not permitted to conduct the interviewing or participate in the consideration process for U.S. workers applying for the offered position. The employer's representative who interviews or considers U.S. workers must be the person who normally interviews or considers applicants for the same or similar job opportunities with the employer for all positions.
Please note that a U.S. worker is considered able and qualified for the job if the worker
If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid off U.S. workers. A layoff is any involuntary separation of one or more employees without cause or prejudice.
Payment for the PERM Process
An employer may not seek or receive payment of any kind for any activity related to obtaining a PERM labor certification. This includes payment of the employer's attorneys' fees, whether as an incentive or inducement to filing or as a reimbursement for costs incurred in preparing or filing a PERM case. Payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in kind payments; and free labor. Certain limited exceptions to this rule apply. Employers and applicants should seek advice on specific situations which may constitute exceptions to this rule.
General Steps for Filing a PERM case
1. Obtain a prevailing wage determination from the US Department of Labor (30-60 days)
2. Complete recruitment efforts 30-180 days before filing (two Sunday ads; three other forms of recruitment; 30 day job order placed through the SWA)
3. Post internal 10-day Notice of Job Opening at Employer's premises (and include Notice in any in house media)
4. Review and screen all candidates
5. Assemble recruitment documentation and prepare recruitment report
6. Complete Form 9089 for client review and approval
7. File 9089
8. Calendar expected approval date (3-12 months)
Validity of a PERM Certification
An approved PERM case expires if not filed in support of a Form I-140 petition with the USCIS within 180 calendar days of the date the Department of Labor granted the certification.
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