07/29/10

Overview of PERM

Most employment based immigration cases start with the filing of a Labor Certification with the U.S. Department of Labor.

In March 2005, the U.S. Department of Labor (DOL) began accepting Labor Certifications under its new PERM Labor Certification regulations.  During the first three years of the program, most PERM Labor Certifications were completed in 1 - 4 weeks or less.  At the same time, DOL struggled to complete processing on an enormous backlog of Labor Certifications filed under previous regulations (Traditional and Reduction In Recruitment Labor Certifications).  

By July 2008, DOL eliminated most of its backlogged Traditional Labor Certifications and Reduction-in-Recruitment Labor Certifications, and began shifting adjudication officers from its backlog elimination centers its new processing center in Atlanta to adjudicate PERM Labor Certifications.  Since July 2008, DOL has reported an increase in audits and processing times , probably resulting from closer scrutiny of the applications by the increased number of adjudication officers and delays caused by transferring files from the Chicago processing center to the new Atlanta processing center.  

Notwithstanding increased processing times, PERM still results in much faster Labor Certifications than before, shortening processing by as much as 1 or 2 years compared to Traditional and Reduction in Recruitment Labor Certification.  

The following is a brief summary of the filing requirements for professional level employment based immigration under PERM.   

A. Pre-Filing Recruitment

The pre-filing recruitment steps for professional positions are as follows:

  1. A job order must be placed with the state workforce agency for a period of 30 days.
  2. An advertisement must be placed in all in-house electronic or printed media “in accordance with normal procedures used for recruitment of similar positions in the organization.” In other words, if the employer normally posts similar job openings on its web site, or in its newsletter, or on the company bulletin board, then a similar ad or posting must be completed for each of those normal recruitment procedures.
  3. A specifically worded job notice must be posted at the office for at least 10 consecutive business days.  The Job Notice must contain the job title, job duties, minimum requirements, minimum prevailing wage (as determined by the relevant state workforce agency), and state that anyone may provide documentary evidence to DOL and/or the state workforce agency.  The procedure is different for unionized jobs.
  4. Two Sunday print ads must be published “in the newspaper of general circulation in the area of intended employment.”  The ads must contain specific information.  If an ad does not contain all of the necessary language, or if it is placed under an incorrect heading or keyword, or if the newspaper is not widely circulated, it would be considered a failure to make a good-faith effort to recruit U.S. workers.
  5. Three additional advertisements (or “forms of recruitment”) are required, including any three of the following:
    1. Job Fair participation
    2. Employment web site
    3. Employer’s web site ad
    4. On-campus recruiting or job notice in a college placement office
    5. Trade or professional organization (on-line or print)
    6. Placement firms (headhunters)
    7. In-house employee referral program if it includes identifiable incentives
    8. Local or ethnic newspapers, to the extent that it is appropriate for the job opportunity
    9. Radio or TV

These ads may be completed within a few weeks. However, the employer must wait at least 30 days after the job order (#1 above) has been posted for 30 days before filing the application. Ads expire 180 days after running. 

B. Recruitment Report

The employer must collect and retain all of the resumes submitted in response to the recruitment. A Recruitment Report, resumes, and the evidence of pre-filing recruitment must be retained for five years from the date of filing. DOL could audit the case and withdraw the approved labor certification at a later date if the documentation is inadequate or does not support the case.