8 April 2019

PERM FAQs

The PERM process can sometimes feel like an uphill battle, so naturally I receive many questions on this topic. In order to shed some light on the process, I thought I’d share some of the common questions that have come my way! Please also feel free to share some of your questions!

Q: What is PERM?

A: PERM is a U.S. Department of Labor Program, which stands for Program Electronic Review Management. It was implemented in March 2005 to streamline the labor certification process. PERM is a program through which an employer can hire a foreign national by submitting an application online or by mail to the Department of Labor (DOL). By submitting the PERM labor certification on ETA Form 9089, the employer is certifying that the U.S. labor market has been tested through good faith recruitment and through these efforts the employer was unable to find “able, willing, qualified, and available” U.S. workers for the offered permanent position.

Q: What does the PERM application process require the employer to document?

A: The PERM application process requires the PERM employer to document its recruitment methods and results, report relevant details regarding the company, the offered position, and the foreign national, and make certain attestations about the position, wages, and recruitment conducted.

Q: How long does it take to file a PERM Labor Certification application?

A: We cannot file a PERM Labor Certification in less than 60 days from when recruitment begins due to certain requirements mandated by the Department of Labor. We will also need to obtain a prevailing wage determination from the National Prevailing Wage Center before we can file the PERM application. The processing time for prevailing wage determinations can extend the filing date beyond 60 days.

Q: Once the PERM Labor Certification is filed, how long does it take the DOL to process the case?

A: Processing times fluctuate throughout the year. Currently, the DOL is taking approximately 3-4 months to  adjudicate PERM applications. General processing times can be found here: iCERT Processing Times

Q: If the case is selected for Audit, how long does it take the DOL to process the case?

A: Processing times fluctuate throughout the year. General processing times can be found here: iCERT Processing Times

Q: What must the offered job requirements reflect?

A: The requirements for the permanent job opportunity must reflect the minimum requirements for the position, which is different from preferred requirements.

Minimum vs. Preferred Requirements

PERM Minimum Requirements: PERM regulations state that the education, experience, and training requirements must contain the bare minimum credentials that are needed to perform the job. You can ask yourself: What bare minimum credentials would you need a prospective employee to have to be able to function in a reasonable manner in the position?

Preferred Requirements: These are “real-world” job requirements. For instance, an employer prefers a prospective employee to have a Master’s degree with 15 years of professional related work experience. But, the position, at a minimum, requires a Master’s degree and 1 year of experience to function in a reasonable manner (be minimally qualified for a job). In a “real-world” situation, the employer can require whatever they like, but under PERM regulations, the requirements must reflect those minimally needed to perform the job.

Q: What is a Prevailing Wage Determination?

A: The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The DOL issues a wage determination based on the specific position, the requirements for the position, and the area of intended employment, among other things.

Q: What is the mandatory recruitment for both Nonprofessional and Professional occupations?

A: All PERM applications, whether for a professional or nonprofessional occupation, require the following recruitment efforts:

  • 30 day job order with the State Workforce Commission serving the area of intended employment;
  • Two Sunday print advertisements in a newspaper of general circulation; and
  • Notice of Filing to be posted at the job site for a period of 10 consecutive business days.

Q: What is a job order?

A: A job order is an advertisement for a job that is placed with the State Workforce Agency (SWA). For the PERM process, the job order must be placed for at least 30 days. Thereafter, there is a 30 day “quiet period” prior to filing the PERM application.

Q: What is a Notice of Filing?

A: A Notice of Filing (NOF) is an internal job posting that is placed conspicuously at the PERM employer’s premises for 10 consecutive business days during the recruitment stage of the PERM process. Technically it is not intended to be a form of recruitment, but instead serves to put employees on notice of the company’s job opening and the potential permanent hiring of a foreign worker. The NOF includes instructions for reporting violations to the DOL Certifying Officer. The NOF must end at least 30 days before filing the PERM application, but no more than 180 days before the application is filed.

The PERM employer must now publish the notice of filing in any and all in-house media, whether electronic or printed, that is usually used by the employer for posting such a notice for recruitment of similar positions.

Q: Is there additional recruitment that must be conducted if the PERM application is for a professional job?

A: Yes. In addition to the mandatory recruitment mentioned above, 3 additional recruitment efforts from the DOL’s list must be conducted. The DOL options are as follows:

  • Job Fairs
  • Employer’s company website
  • Job search website (Ex.: Monster)
  • On-Campus recruiting
  • Trade or professional organization
  • Private employment firms
  • Employee referral program
  • Campus placement office
  • Local or ethnic newspaper; and
  • Radio or TV advertisement

Keep in mind that the overall selection of efforts must demonstrate good faith recruitment by the PERM employer. Some recruitment methods may be considered “better” than others depending on the case.

Example: If a position does not have a foreign language requirement, it might not be best to advertise in an ethnic newspaper or if a position requires only 2 years of experience, but does not have an education requirement, it would not be wise to advertise at a campus placement office.  

Q: What is the purpose of the 30 day quiet period?

A: After completing all required recruitment efforts, the PERM employer must allow potential U.S. applicants an additional 30 days to respond. This is called a 30 day “quiet period” and it immediately follows the last day of each recruitment effort. 

Note: If the position is a professional one, ONE of the three additional efforts may take place within 30 days of filing the PERM application.

Q: How long are the recruitment efforts valid?

A: Advertisements are valid for 180 days. All recruitment must be complete including the 30 day job order, the 10-day notice of filing and the 30 day “quiet period” within no more than 180 days. The clock starts on the very first day of recruitment.

Q: What information about the job do the advertisements have to contain?

A: The Advertisements must:

  • Name the employer;
  • Provide instructions on where to send the resume;
  • Provide a description of the position that is specific enough to apprise U.S. workers of the job opportunity;
  • Name the geographic are of employment with enough specificity to apprise U.S. workers of travel requirements and where the applicants likely must reside to perform the job;
  • Contain no wage lower than the prevailing wage;
  • Contain no job requirements that exceed those listed on the PERM application;
  • Contain no wages or terms of employment that are less favorable than those offered to the beneficiary.

Q: Must the job order, newspaper and 3 additional recruitment efforts contain the prevailing wage?

A: No. The DOL does not require that these recruitment efforts contain the prevailing wage. If the employer chooses to include the wage, the wage rate cannot be lower than the prevailing wage. If the PERM beneficiary is offered more than the prevailing wage, then the higher offered wage must be listed.

Q: Must the Notice of Filing contain the prevailing wage?

A: Yes. The DOL requires that the NOF contain at least the prevailing wage. Again, if the PERM beneficiary is offered more than the prevailing wage, the higher offered wage must be listed.

Q: Once my PERM application is filed, is there any way to predict if it will be audited by the DOL?

A: Please visit my post: What’s with the PERM Audit? Recognizing PERM Audit Triggers from the Get-Go

Q: If the offered job for which certification is sought requires experience, must I submit my qualifying experience letters with the PERM application?

A: Technically, no. At the time of filing the PERM application, you will not need to submit your qualifying experience letters to the DOL. You will however need to submit qualifying experience letters with the I-140 Immigrant Petition (2nd stage in the employment based green card process).The experience letters must match whatever information you have provided on ETA Form 9089, including previous job titles and dates of employment. Further, your experience letters will have to be in a certain format as required by USCIS. Therefore, it is a good idea to have these letters prior to filing the PERM application so that they can be properly reviewed and verified by an attorney.

Q: Is it important to provide exact dates and job titles on the PERM application?

A: Yes, it is very important that accurate dates and job titles are provided. If the PERM is filed with certain dates and titles and you later find out that your experience letters have conflicting information, this can cause USCIS to question the case at the I-140 stage.

Q: Can experience gained with the PERM employer be used to qualify for the offered position?

A: Generally no, unless one of the following exceptions is met

  1. Infeasibility to train: Meaning the PERM employer is no longer able to provide the type of experience and training that it provided to the sponsored employee. For a more detailed explanation, please visit my post: Qualifying for the Job Using Experience Gained from the Same PERM Employer: Infeasibility to Train Exception
  2. Substantially Different Jobs: A beneficiary may satisfy the employer’s actual minimum requirement through his or her experience gained with the PERM employer, so long as the position in which the experience was gained is not substantially comparable to the offered PERM position. A “substantially comparable” job means a job requiring performance of the same job duties more than 50 percent of the time.
    1. Example: Software Developer who has only worked for the PERM employer designs and develops software 100% of the time during a typical work day. The PERM employer has promoted the employee to an IT Project Manager and wants to sponsor the employee for that position. An IT Project Manager spending the majority of his/her day (over 50%) performing managerial tasks and the remainder of the time designing and developing software should be able to use the experience gained as a Software Developer to qualify him/her for the IT Project Manager position.
    2. Please also see my previous post: PERM Approval on Reconsideration: Qualifying Experience Gained with PERM Employer
  3. Different FEINs: For example, working for a subsidiary of the same parent company.

Q: Can a PERM beneficiary pay for any portion of the PERM process?

A: No. According to DOL regulations, the PERM employer must pay for the entire PERM process. This includes legal fees and any advertisement costs.

* The I-140 and I-485 can be paid by either the employer or employee.

Q: Can a PERM beneficiary be involved in the recruitment process?

A: No. According to DOL regulations, a beneficiary is not allowed to be involved in any portion of the recruitment process.

Q: Do I have to be in the country for an employer to file the PERM application?

A: No, you do not have to be in the U.S. for an employer to file the PERM application.

Q: Do I have to currently be working for the employer who is filing the PERM application?

A: No, the employer can file a PERM application on your behalf as a future employee. Please note that although this is allowed, your employer must continue to demonstrate its Ability To Pay (ATP) you the prevailing wage listed on the labor certification from the time the PERM application is filed to the time you receive the green card. A PERM employer can demonstrate ATP in 3 ways: (1) Salary paid to the beneficiary, (2) the company’s net income, or (3) the company’s net assets.

Example 1: You are employed by Company A and Company B files a PERM application on your behalf. The prevailing wage for the position is $72,000/year. Because you are currently working for Company A, Company B will have 2 options to demonstrate ATP: (1) through its net income or (2) through its net assets. Company B shows a net income of $500,000. In this situation, the company can demonstrate that it has the ATP you the prevailing wage.

Example 2: Same situation as above, but Company B has a net income of $20,000 and net assets that amount to $60,000. In this case, Company B cannot demonstrate ATP. (You are currently not on payroll, so option 1 is not available)

Example 3: You are employed by Company B from the time of filing the PERM application and are being paid $72,000/year. Company B can demonstrate ATP.

Q: Can 2 or more companies simultaneously file a PERM application for the same beneficiary?  

A: Yes. As long as there is a bona-fide, full-time permanent job opportunity, the DOL does not prohibit 2 or more companies from filing a PERM application for the same beneficiary.

Q: How long is an approved PERM Labor Certification valid?

A: An approved PERM Labor Certification is valid for 180 days.

Q. I am thinking of leaving my current employer where I have a pending PERM application. Can I transfer my H-1B to begin working for another employer? 

A. Yes, but if your current employer decides to stop the green card process, you will have to start the process from the beginning with your new employer (considering there is a bona fide job opportunity).

Q: If I have an approved PERM Labor Certification with a different employer, but never received an approved I-140, can I now port the priority date with my current PERM employer? 

A: No. In order to port your priority date, you must have an approved I-140 for at least 180 days.

Q: Can filing a PERM application jeopardize my H-1B status?

A: No. H-1B visa holders are allowed to enter the U.S. to work temporarily while simultaneously seeking lawful permanent resident status.

Please also see my PERM Labor Certification Tips!!!

Krystal Alanis

Direct: 713-457-5703

Email: krystal@rnlawgroup.com

You can also find me on

 

18 COMMENTS :

  1. By surendra on

    Hi My PERM petition was filed with wrong End date for the SWA job order. Instead of 2018, they mentioned 2019. This is was noticed after 2 months of filling. My attorney informed that this Petition may denial also they stated that they will prepare a request for reconsideration or We starting the recruitment, just in case the reconsideration request is not favorable. .

    My Prevailing wage expiration date is 06/30/2019.

    Do you suggest any other better options rather than filling reconsideration.

    May 6 years max out by Nove 1st week. If we start the recruitment now, can I get approved PERM by Nove.

    Reply
    1. By KrystalAlanis (Post author) on

      Hi Surendra,

      At this point if the advertisements are expired, you wouldn’t be able to file another perm application with the correct dates using those same advertisements, but you would be able to restart advertisements using the existing prevailing wage determination so long as your employer begins advertising prior to the prevailing wage expiration. Your best option right now would be to restart recruitment as a backup option and if you receive a denial of the pending application, then a request for reconsideration could also be filed if needed. If you begin recruitment now using the existing wage determination, you are looking at an end of August, early September filing date on the new application. The Department of Labor is taking about 1.5 to 3 months to approve labor certification applications once filed (if not audited). So you will be running close to the November max out date. Please note that in order to give exact advice for your specific facts, I would have to review the entire case details. The information above is based only with the details you have provided. I would consult with your immigration attorney on these issues directly. Thank you!

      Reply
  2. By MURUGADOSS BALAKRISHNAN on

    Hi, my employer filed my Perm in EB2, even though i am eligible for EB1 as international manager, I have H1B Visa, will this Perm EB2 filing will affect my over all GC Processing timelines, can I upgrade to EB1

    Reply
    1. By KrystalAlanis (Post author) on

      Hi Murugadoss,

      The overall processing time for your green card in the EB-2 category will really depend on your country of birth. You can send me an email with this additional information if you would like (krystal@rnlawgroup.com). You may be able to upgrade to EB-1 if you qualify for this category under Multinational Manager/Executive. One of the requirements is that you worked abroad as a manager or executive for a company related to the U.S. petitioning employer for at least 1 year within the past 3 years. If you have been in the U.S. in non-immigrant status (H-1B for instance) with the same petitioning employer, affiliate, or subsidiary, USCIS will look to the 3 year period prior to entering the country to work for the U.S. employer. Please let me know if you have any additional questions. Thank you!

      Reply
  3. By David Kim on

    Hello, I posted this question on LinkedIn already, so feel free to disregard this if it’s already answered.

    Hello, I have a question. From a client’s perspective’s in regard to PERM labor certification,
    he or she wishes the employer and immigration attorney will employ the best strategies so that
    no able, willing, and qualified U.S. worker is found and that he or she will in the end be the one selected
    in the recruitment process so that the employer can sponsor him or her and submit the labor
    certification (ETA-9089) in his or her name. Practically speaking, what are the some of the common
    strategies employed by employers and immigration attorneys to get their desired beneficiary-employee
    selected in the PERM process? I understand that having foreign language can help if it’s truly a business justification.
    What other strategies and methods are there? I assume the way the job description is written is important in this regard.

    Thank you very much.

    Reply
    1. By KrystalAlanis (Post author) on

      Hi David,

      From the outset, the employer should understand that the Department of Labor is only interested in the company’s minimum requirements for the offered job opportunity. This doesn’t mean that the position description and requirements cannot be detailed. The employer should avoid tailoring the job description/minimum requirements for the PERM position to the beneficiary’s qualifications when drafting the job description. At the same time, you do not want the job details/requirements to be too generic either. When asking the employer what is minimally required for the job, you can also ask if there are any specific minimum skills that are required to perform the job and have the employer quantify that minimum requirement. I have also provided some PERM tips (they are general, but may be helpful): http://theimmigrationfiles.com/2018/04/helpful-tips-perm-labor-certification/

      Reply
  4. By Mohsin on

    Hello Krystal,

    Hope you are fine. Need some information from you.

    I have applied for perm application on June 20, 2018. My file was randomly selected for audit, i have responded back on Oct 12, 2018 & again DOL sent me RFE ( requested lots of documents), I have submitted all documents point to point on Jan 14, 2019.

    This is the first time my company hiring alien. Is this the reason DOL requested lots of documents? When can i expect result from DOL? Is there any chance to denial after submitting all documents?

    Please advise. Thank you!

    Kind Regards,
    Mohsin Rubel

    Reply
    1. By KrystalAlanis (Post author) on

      Hi Mohsin,

      There could be a number of reasons why the DOL sent a second request, but I would have to know more about the case to pinpoint the reason. What type of additional documents did the DOL request? If you would like, you can email me directly at krystal@rnlawgroup.com to schedule a call. Thanks!

      Reply
  5. By Gceb32020 on

    Hi Krystal, hope you can provide some Initial response to this, my i140 was approved with employer 1 with PD 2011 under EB3. In 2018, I changed to employer 2. I am planning to return back to employer 1 for the same job and have confirmation that my I140 has not been withdrawn. With returning back to Employer 1 after almost a year, can I continue my GC or there is a need for employer 1 to file PERM again? Also, a related question, my salary since 2011 PERM approval has almost doubled with organic promotions and with my job change, will this also be a reason to file PERM again when I return back to employer 1? Thanks again for your expertise and comments.

    Reply
    1. By KrystalAlanis (Post author) on

      Good morning,

      I apologize for the delayed response, I was out of the office for the holidays. Generally, if your previous employer did not withdraw your approved I-140 petition and the company still intends to hire you permanently in the sponsored position once your green card is received, then a new PERM application should not be needed (The job still needs to be open and available to you). I am a bit confused though as you stated that you will return to your previous employer in the same position, but then went on to state that you had promotions and a job change. Were you in different roles with your previous employer other than the position they sponsored you for? In order to get the full scope of the issue, I would need more information. If you would like, you can email me further information at Krystal@rnlawgroup.com. Thanks!

      Reply
  6. By User2687 on

    Hi,
    My perm got certified with incorrect employment start and end date. My previous employment end date is aug 18 but it mentioned as aug 08.
    I am in the process of i140 right now. My attorney said no need to worry.
    But is there a way to correct this while filing i140?
    Or if this affect the i140 approval if I go with the incorrect date?
    Please advice. Thanks

    Reply
    1. By KrystalAlanis (Post author) on

      Hi,

      Generally, because there isn’t a large discrepancy in the dates you should be okay as long as you still meet the minimum requirements based on the correct employment dates. Normally if this was just an administrative or typographical error on the PERM form, you can state that on the cover letter when submitting the I-140 Immigrant Petition to USCIS. This way the dates listed on any employment verification letters for that particular employment history will correctly match. This is just one example of how this can be addressed. As your attorney has complete knowledge of your case, he or she would be better able to assist you on this particular issue. Again, it is always advised that you speak with a qualified immigration attorney before moving forward. Thanks!

      Reply
  7. By Mica on

    Hello. My Perm was denied because of lack of recruitment. Is it possible for my employer to re fill for a perm?
    Also, I am in Argentina and I have several weddings at the end of the year, unfortunately I do not own a tourist visa. Is it ok if I applied for one after my employer got their perm denied or I should not try because I would mostly get a denied visa?

    Thank you

    Reply
    1. By KrystalAlanis (Post author) on

      Hi Mica,

      If your PERM was denied, your employer can file a new PERM application, but the company will have to begin the recruitment process from the beginning, as the advertisements are likely no longer valid. There is also an option to file a motion to reconsider on the denial, but success on this motion is very much case specific (your employer has a limited amount of time to file this motion). If your employer does begin the PERM process over again, and the new case is filed within 1 year of a denied PERM application, the case may be audited. I hope this helps!

      Reply
  8. By Dazzle on

    I have only 1 year 10 months work experience and bachelors degree but the job requires 2 years experience and bachelors degree for labor certification for perm. Do you think this might be a problem or not?

    Reply
    1. By KrystalAlanis (Post author) on

      Hi! You will have to meet the entire 2 year minimum requirement prior to filing the labor certification. You may want to have an attorney review the specifics of your case to properly determine whether you will meet the requirement by the time your labor certification is to be filed.

      Reply
  9. By Jean on

    My PERM approved with wrong EIN number of my sponsor company for my attorney’s typo mistake. My attorney filed I-140 with same wrong EIN number.

    I received RFE from USCIS to verity the difference of EIN in PERM and I-140 with EIN in My company’s Corp Tax return, the latter is correct.

    If USCIS recognizes this error, will my PERM and I-140 be denied and should I apply PERM again?

    Please advise. Thank you.

    Reply
    1. By KrystalAlanis (Post author) on

      Hi Jean! This can potentially cause issues for your case, but it does not necessarily mean it will lead to a denial. But, for a specific situation such as this, your entire case would need to be reviewed by an immigration attorney so that you are properly advised.

      Reply

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