LEGAL GUIDE
Written by attorney Carl Michael Shusterman | Feb 21, 2011

Things to Consider Before Starting the PERM Process

A PERM labor certification can be a very complex process. Before embarking on this endeavor, consider the following:

  1. Labor Department red flags: Is the employer a closely held corporation, partnership or sole proprietorship in which the foreign employee might have an ownership interest? Are there family ties between the owners, stockholders, partners and/or corporate officers and the foreign worker?

If any of these red flags exists, the Labor Department might question the job offer? The PERM application could be subject to an audit, in which the employer would be asked to show that they are offering a bona-fide job and that the job has first been open to U.S. workers. The audit will also look for any evidence that the foreign worker may have influenced the hiring decisions and examine whether any family member of the foreign worker had control over the hiring process.

  1. Pink slips: In the last six months, has the employer laid off any employees in the area of intended employment?

If so, then the employer must show that it has notified and considered all potentially-qualified laid off U.S. workers of the job opportunity. The Labor Department will also want to know, in detail, the results of the notification and consideration of the laid-off workers.

  1. Tell it like it is: Do the foreign worker’s qualifications match the requirements in the job description?

An employer may think that the foreign worker qualifies for the job based on a calculation of experience equivalent to education. However, the foreign worker must qualify for the primary job requirement, and not just the secondary qualifications. Let’s say that an employer seeks a software engineer with a Bachelor’s degree and five years of experience. They end up hiring a software engineer with a three-year degree from a university in India, a diploma in Software Application and five years of experience. While the employer is satisfied that their new employee fulfills their job requirements, the Labor Department may not be. Because the employee does not exactly fulfill the primary job requirement of a Bachelor’s degree plus five years of experience, the employer must specify in the PERM application that they will accept any suitable combination of education, training, or experience. Likewise, they must show that they have considered any similarly-qualified U.S. applicants.

  1. Tricks of the trade: Did the foreign worker gain any of the required experience with the employer filing the PERM application?

If so, the Department of Labor may audit the application. The employer may not require any U.S. applicants to possess training and/or experience beyond what the foreign worker possessed at the time of hire, including as a contract worker, unless:

  • the foreign worker gained the experience in a position “not substantially comparable to the position for which the certification is sought for". A “substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50% of the time; or

  • the employer can demonstrate that it is no longer feasible to train a U.S. worker to qualify for the position.

In this case, the employer is defined by their Federal Employer Identification Number (FEIN). If the foreign worker has related experience with an associated company abroad, but with a different FEIN, the Department of Labor will consider it to be experience with a different employer for the purposes of the labor certification.

  1. In this economy?:Is the job market vibrant enough to require and sustain foreign workers in this occupation?

Filing a PERM application is an expensive and time-consuming process. In addition to all of the above considerations, an employer should also seriously assess how the current job market may affect their labor certification. A high unemployment rate in the area or significant layoffs in the industry or occupation may create a pool of qualified and eager U.S. workers. If there are qualified U.S. workers who are willing to perform the job, you cannot proceed with the labor certification process.

To maximize efficiency and resources, an employer should seriously and honestly consider the viability of the application as well as the vulnerability of the application to the Labor Department’s audits, all before initiating the labor certification process.

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