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A Comprehensive Guide to the PERM Process – PERM Requirements

By May 2, 2023PERM
A checklist

The PERM process is the first stage of the employment-based sponsorship process that US employers use to sponsor foreign nationals for a green card. It ensures that minimally qualified US workers are given priority for available jobs before foreign workers by testing the US labor market. This guide below will examine the PERM process’s comprehensive requirements.

The US Employers' Crucial Factors for the PERM Process

Employers should keep in mind several significant factors when supporting the PERM process for foreign nationals, including its lengthy processing times, job, salary and location, and the importance of proper timing based for H-1B and L-1 visa holders.

First, eligible employees must meet the Company’s minimum criteria. Green card sponsorship is only available when the US employer can demonstrate that they cannot find a worker with the required skills in the U.S. workforce.

It’s crucial to understand that the PERM process is employer-driven, and U.S. law prohibits foreign nationals from participating in any stage of the recruitment process, including advertising and screening for U.S. candidates.

Furthermore, U.S. law prohibits foreign nationals from paying or reimbursing employers for any expenses associated with the PERM application, including legal fees.

Distinguishing the Difference Between EB-2 and EB-3 for Professional Positions

As an US employer, if you want to hire and sponsor a foreign national on a permanent residency basis, you must determine the various employment-based categories options and requirements. In context of a PERM sponsorship, foreign nationals are eligible under the EB-2 and EB-3 categories. The requirements to keep in mind as an employer to determine the eligibility either for the EB-2 versus EB-3 visa categories for professional positions are:

  • EB-2: Individuals who possess a relevant master’s degree or a relevant bachelor’s degree and five (5) years post baccalaureate related work experience are eligible for the EB-2 preference filing category.
  • EB-3: Individuals with a relevant bachelor’s degree may qualify for the EB-3 category as a professional.

The EB-3 category may be open to a foreign national who falls under any of the following categories: skilled workers, professional, or other worker.

  • Skilled workers” refer to individuals whose jobs require at least two years of training or work experience that is not of a temporary or seasonal nature.
  • “Professionals” are individuals whose jobs require a U.S. baccalaureate degree or its foreign equivalent and are members of a professional occupation.
  • The unskilled workers” is a subcategory reserved for individuals performing unskilled labor that requires less than two years of training or experience and is not of a temporary or seasonal nature.

To qualify for an employment-based immigrant visa, an individual must possess the appropriate combination of skills, education, and/or work experience gained prior to joining the current sponsoring employer, which is essential for obtaining a green card.

The PERM Labor Certification Requirements and Overview

Employers must obtain a PERM labor certification from the Department of Labor (DOL). The PERM process is a lengthy and complex process that involves several requirements that must be met by employers below:

  1. Drafting the Job Description and Minimum Requirements

The PERM process begins by the US employer drafting the PERM job description, including the minimum requirements. The minimum requirements cannot be tailored to the current sponsoring employee. Instead, the sponsored employee must be able to demonstrate that he/she gained the required skills with prior employers or substantially different roles with the current US employer. Once the employer provides the necessary information, the job description is finalized for PERM purposes.

  1. Skills Confirmation and Employment Verification Letters

Once the PERM job description is finalized, the sponsoring employee will need to provide further information regarding his/her education as well as prior work experience and skills acquired from previous employers. More specifically, the sponsoring employee will request Employment Verification Letters (EVLs) of the previous positions, in which the employee gained the specific experience required for the PERM position. If the employee’s degree is from outside the U.S., the employee will also need to get their education evaluated to determine whether it is equivalent to a U.S. degree.

  1. Prevailing Wage Request Sent to the Department of Labor

After defining the job description and minimum requirements, the US employer will need to secure a Prevailing Wage Determination (PWD) from the Department of Labor by submitting the 9141 electronically. The PWD is the wage that is paid to workers in the occupation and geographic area where the job is located. The employer must pay the foreign worker at least the prevailing wage for the position. Once the PWD is received, the US employer determines whether the employee’s current annual rate of pay meets or exceeds the assigned wage.

  1. The Labor Market Test:

The employer is required to conduct a recruitment process to evaluate the availability of qualified U.S. workers for the job. This recruitment process must adhere to DOL regulations, which include placing a job order with the State Workforce Agency, placing an advertisement in 2 consecutive Sunday newspaper advertisements, and posting the Notice of Filing at the job location. If the job is for a professional position, the employer must also advertise the job in at least three additional recruitment sources. The employer must document all recruitment efforts.

The labor market test comprises an active posting period of no less than 30 days, followed by a mandatory quiet period. During the quiet period, the employer will continue to receive and screen applications from interested U.S. applicants. If a qualified U.S. applicant applies for the job, they will need to go through additional screening and an interview for the PERM position. The U.S. applicant review process can take several weeks, depending on the number of applicants received. According to Department of Labor regulations, the law firm cannot be involved in the recruitment process.

5. Preparing and Submitting the PERM Application (ETA 9089)

Upon receipt of the final recruitment requirements from the U.S. employer and the determination that no able, willing, and qualified U.S. applicants are available to work the PERM position, the Labor Certification will be prepared on ETA 9089. Once ETA 9089 form is drafted, the employer and employee will review for accuracy before filing. After the ETA 9089 form has been finalized, it will be submitted to the Department of Labor for processing.

In conclusion, the PERM process is the first stage of the US employment-based sponsorship process for sponsoring foreign nationals for a green card. It tests the US labor market to prioritize minimally qualified US workers before foreign workers. The comprehensive requirements include several essential factors that employers should keep in mind, such as lengthy processing times and job, salary, and location specificity. The employer-driven PERM process involves drafting the job description and minimum requirements, confirming the sponsoring employee’s skills and employment verification letters, securing a prevailing wage determination, conducting a labor market test, and preparing and submitting the PERM application. Employers unfamiliar with the process should consider working with experienced immigration attorneys to ensure compliance with DOL regulations and increase the chances of success.

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