When a company wants to sponsor a foreign worker for a green card, they will often use the PERM process. This multistep process requires a significant amount of involvement from the sponsoring employer, particularly during the labor market test. It usually falls to the Human Resources Department to work with the immigration attorney on the PERM process. An overview of the process and some tips are below.
What are the steps to sponsor an employee through the PERM process?
The PERM process requires the employer to test the U.S. labor market to determine if there are any willing, qualified and available U.S. workers for the open position. If the employer tests the labor market and does not find any U.S. workers to fill the position, they can then file a Labor Certification with the Department of Labor. Once the Labor Certification is approved, the employer can continue with the process by filing an I-140 petition with U.S. Citizenship & Immigration Services. If the employee is in the U.S. in valid status and an immigrant visa is available, a green card petition can be filed along with the I-140 petition. If the employee is outside the U.S., the green card petition can be processed through a U.S. Consulate abroad once the I-140 petition is approved. The employee will qualify for either an EB-2 or EB-3 green card under the PERM process.
Tips for HR professionals working on a PERM
- Meet with all interested parties to set expectations and understand the timeline: The PERM process can take several months and involves working with multiple parties including the foreign worker being sponsored, the immigration attorney and the managers of the sponsored employee. At the initial meeting, it is good to discuss the attorney’s anticipated timeline for the entire process and ask about the current Department of Labor processing times for Prevailing Wage Determinations and Labor Certifications.
- Pay attention to the employee’s underlying visa status: If the foreign worker is currently in the U.S. working for the company, it is important to pay attention to their underlying visa status to determine whether it will need to be extended while the PERM process is ongoing.
- Set up the company’s PERM account early on in the process: Once recruitment is successfully completed, the attorney will draft and file the Labor Certification using the employer’s online account. Employers can register for an online account through the Department of Labor’s Foreign Labor Certification Online System. Sometimes the system requires the employer to submit additional documents to verify business existence and this verification can take weeks or months, so it is a good idea to register early, ideally at the start of the process.
- Ensure that there is appropriate staffing before starting recruitment: Although the immigration attorney will guide the majority of the PERM process and can assist in placing the PERM job advertisements, the employer is responsible for conducting recruitment and will need to ensure that they are ready to review resumes, respond to viable applicants and conduct job interviews within a reasonable timeframe after placing the job advertisements.
- Make sure everyone involved in the recruitment process understands how PERM recruitment differs from a normal recruitment process: When placing an ad for PERM recruitment, the employer is only permitted to ask for the minimum requirements to perform the job in a reasonable manner. Applicants can only be rejected if they do not meet the minimum requirements. This is different from most recruitment processes, where employers are looking for the most qualified applicants. (Please note that if a qualified, willing and available U.S. worker is found, the PERM process has to stop but the employer is not required to actually hire the U.S. worker).
- Set up regular check ins with your immigration attorney for any legal questions: Check in with your immigration attorney regularly to ask legal questions about PERM compliance. Although the immigration attorney cannot review the resumes or assist in conducting recruitment, they can advise on any legal questions to ensure that you are following the legal requirements of the PERM process.
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