6 November 2019

Helpful Tips: PERM Labor Certification

There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition and (3) Adjustment of Status. The PERM Labor Certification process is lengthy and requires careful maneuvering to avoid missteps along the way.

The PERM labor certification is usually the biggest hurdle to clear. So today I want to discuss some helpful tips when working on a PERM application. This list is in no way exhaustive and merely touches the surface of this complicated process. It’s important to understand that the Department of Labor’s (DOL) role in this process is to protect U.S. workers. Keeping this in mind will help you avoid mistakes.

  1. Properly Draft the Job Description for the Sponsored Position: The employer should avoid tailoring the job description/minimum requirements for the PERM position to the beneficiary’s qualifications when drafting the job description. Tailoring is assumed to disadvantage U.S. workers by unfairly restricting the applicant pool. At the same time, you do not want your requirements to be too generic either.  In order to solve this problem just ask yourself: what minimum requirements would it take for an individual to perform in the PERM position and are these requirements normal to the occupation? Remember, the PERM recruitment process is different than “real-world” recruitment. You have to decide what is minimally required for the position, instead of what is merely preferred. Drafting the requirements incorrectly can lead to an audit, so be very careful when at this phase of the process.
  2. Verify the Beneficiary’s Qualifications: The beneficiary must meet the minimum requirements listed on the PERM application as of the priority date (date the PERM application is filed). The beneficiary should provide all qualifying education and experience documentation before beginning the PERM process to confirm that the minimum requirements are met. Further, if the position requires any type of certification or license as part of the minimum requirement, be sure to have those available and up to date.
  3. Avoid Audit Triggers: When an employer files a PERM application, the DOL sometimes issue an audit on the case (About 30% of PERM applications are audited). Although it is sometimes impossible to avoid an audit because of the DOL’s random selection process, there are certain audit triggers to watch out for. For a list of audit triggers, please see my previous post: PERM Audit Triggers . Understanding these triggers may provide you with an edge going into the process.
  4. Review Non-Immigrant Visa Job Requirements, If Applicable: If a beneficiary is on a non-immigrant visa, such as an H-1B, review the position details to verify if the PERM requirements and wage details are compatible. Careful analysis should occur where the H-1B and PERM positions are the same.
  5. Determine Employer’s Ability to Pay: At the I-140 stage, the U.S Citizenship and Immigration Services (USCIS) will verify that the PERM employer has the ability to pay the beneficiary at least the prevailing wage issued by the Department of Labor for the PERM position. the employer will have to demonstrate its ability to pay the prevailing wage (or the offered wage, whichever is higher) from the priority date until the green card is received. Please see my previous post for more information on ability to pay: PERM FAQs
  6. Understand the Importance of Dates: DOL regulations require that certain advertisements run for a set period of time during the recruitment phase of the PERM process. The DOL regulations also have a mandatory “quiet period” during which the PERM application cannot be filed. In addition, the prevailing wage determination has a validity period that must be considered in connection to recruitment. One small mistake involving dates could end with a denial of your PERM application. Understand and remain knowledgeable of these rules to avoid improper filing.
  7. Watch Out for Typographical Errors on ETA Form 9089 (PERM application): PERM was implemented to streamline the labor certification process. Therefore, the DOL does not easily forgive errors on the application. In fact, even a minor typographical error can cause denial of your PERM application. Always double check substantive and non-substantive portions of the application before submission to the DOL.
  8. Respond to the Sponsorship Verification Email: Once a PERM application is electronically filed, the employer will receive 2 emails. The first email is a confirmation that the application was received by the DOL. The second email is called a sponsorship verification email. This email contains a questionnaire that basically asks the employer to verify sponsorship of the beneficiary. The DOL allows the employer 30 days to respond to this email (it is also important that the employer keep contact email and phone number up to date on the form). If the employer does not respond within 30 days, processing of the case can be delayed or rejected.
  9. Previous PERM filings Should be Consistent: If a PERM application was previously filed for the beneficiary, confirm that there are no discrepancies with the new PERM application. Any discrepancy in applications can cause issues at the PERM and I-140 stage of the green card process. Do not give the DOL or USCIS reason to question the case based on inconsistencies in information and documentation presented.
  10. Comply with the Recruitment Process: Applications received from U.S. workers during the recruitment phase must be reviewed by the employer carefully. An employer may only disqualify a U.S. applicant for lawful job related reasons in accordance with DOL regulations. Further, all documentation must be maintained, including copies of posted advertisements and all resumes received. This information will be used to create a Recruitment Report, where the employer will discuss all lawful job related reasons for rejection of U.S. workers.

These are just a few of the issues I think about when guiding an employer through the PERM process. As mentioned, this list is in no way complete. Each case is different, so please seek advice from a qualified immigration attorney when beginning the PERM based green card process.

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