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 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: Assuming able, willing, qualified, and available U.S. workers are not found for the job opportunity, it can take 7 months to file a PERM application. In order to file a PERM Labor Certification, a Prevailing Wage Determination is required and recruitment must be complete. Currently, the DOL is taking about 5 months to issue Prevailing Wage Determinations. Once issued, the employer must undergo recruitment. The recruitment process will take at least 60 days.
Q: Is there any way to speed up the PERM Labor Certification process?
A. Technically yes. An employer may begin the recruitment process (as described below) while the Prevailing Wage Determination Request is pending. Once the Prevailing Wage Determination is issued, recruitment should be completed. If able, willing, qualified, and available U.S. workers are not found for the job opportunity, the PERM application can immediately be filed. This can speed up the process by 60 days.
Note, there are additional issues to consider before moving for with this option. Employers should speak with a qualified immigration attorney before doing so.
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 7 months to adjudicate PERM applications. General processing times can be found here: FLAG
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: FLAG
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” that must be accounted for 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: PERM Audit Triggers
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:
- 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
- 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.
- 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.
- Please also see my previous post: PERM Approval on Reconsideration: Qualifying Experience Gained with PERM Employer
- 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: 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.
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!!!
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