PERM Labor Certification
An employer may employ a foreign worker to work permanently in the country if the DOL has granted them a permanent labour certification. Most of the time, an approved labour certification application must be obtained from the DOL's Employment and Training Administration before a U.S. company can file an immigration petition to USCIS, part of the Department of Homeland Security (ETA). The DOL must certify to the USCIS that there are insufficient American workers who are able, willing, qualified, and available to accept the position in the intended employment area and that the hiring of the foreign worker won't have a negative impact on the pay and working conditions of American workers who are similarly employed.
The DOL introduced Program Electronic Review Management, a new method for submitting labour certification applications, in March 2005, more than ten years ago (PERM). Employers can submit a Form ETA 9089, Request for Permanent Employment Certification, to the DOL online or by mail under the PERM programme. Though it sometimes varies, the DOL adjudication timeline falls between three and 10 months.
Process Overview
The employer must I receive a prevailing wage decision from the National Prevailing Wage Center and (ii) carry out the relevant recruitment procedures before submitting a PERM application. The full prevailing wage shall be paid by the sponsoring business. According to the PERM regulations, the employer may increase the compensation to the prevailing wage by adding any "guaranteed" incentives or commissions. The bonus or commission cannot be added to the stated wage if it is not "guaranteed."
Depending on whether an occupation is considered "professional" or "nonprofessional," different recruitment procedures are needed. For the majority of occupations, the employer is required to I file a 30-day job order with the relevant State Workforce Agency, (ii) run two separate Sunday job advertisements in the local newspaper, and (iii) post a notice of the job opportunity for ten consecutive business days at the location where the employee will work. The employer must also choose at least three of the ten alternative recruitment strategies from among those available for professional vocations (with some exclusions for specific college or university lecturers).
The recruitment activities must be carried out between 180 and 30 days before submitting the PERM application. One of the alternative recruitment techniques may be finished for professional jobs within the 30-day window prior to submitting the PERM application.
Audits/Requests For Information
The ETA Form 9089 may not be filed with supporting documents; however, if the employer's application is chosen for audit or if the Certifying Officer otherwise demands it, the employer must submit the necessary accompanying documentation.
Retention Of Records
Five years after submitting the ETA Form 9089, the employer must keep copies of all applications for certification of permanent employment and any related paperwork. For instance, the employer must keep the NPWC prevailing wage determination documentation for five years beyond the date the application was filed, even though it is not submitted with the application.
Filing On-Line Or By Mail
The ETA Form 9089 can be submitted online (using web-based forms and instructions) or by mail by the employer. However, the DOL highly advises companies to submit electronically.
