For many work visas and employment-based green cards, the first step is to obtain
a PERM labor certification from the Department of Labor (DOL), which requires an
extensive PERM advertising process. These procedures exist to ensure that employers
are not taking advantage of the immigration system to deprive qualified U.S. workers of
potential jobs.
Before submitting the PERM, the petitioning employer is required to complete the
proper recruitment steps for the job in questions. In regards to the process, PERM
advertising and recruitment can be quite complicated due to the very stringent
advertising requirements.
PERM advertising regulations require that the proper recruitment steps be fulfilled for
both professional and non-professional job positions. It’s necessary to note that all
petitioning employers must attest to completing the PERM advertising and recruitment
requirements before moving onto the application.
If the DOL suspects that the advertising process was not completed in a satisfactory
manner, then you may be subject to a targeted audit. This can seriously delay the
processing time of your employee’s work visa or green card. While some audits are
random and therefore unavoidable, following the PERM advertising process carefully can
help mitigate the chances of being targeted by the DOL.
Prevailing Wage Determination
The first thing that should be done before embarking on the PERM recruitment and
advertising process is to determine the prevailing wage for the offered position. This is
the wage that the DOL has determined to be appropriate for this particular position in
your geographic location.
You must make sure that, if your job advertisements display the wage, that it is not
lower than the prevailing wage. This is especially important for the Notice of Filing, as
you will see further on in this article.
PERM Advertising Process
Below are the mandatory recruitment activities required for both professional and
nonprofessional occupations. Note that this process aims to cover all of the major
avenues by which workers seek employment so that the DOL can be reasonably sure
that you have made a legitimate effort to find a suitable U.S. worker to fill your
position.
1. Placing a Job Order
Employers are required to place a job order with the appropriate State Workforce
Agency (SWA). It is important that this job order is placed with the state workforce
agency that corresponds to the state in which the work will take place.
For example: If you are an employer located in California that has a position open in a
branch in Texas, then you must place the job order with the Texas workforce agency
instead of the California workforce agency.
Once you have placed the job order, you need to let it run for at least thirty (30)
consecutive days, including weekends. Many prospective employers choose to allow the
order to run for a few days longer to avoid the complications that can arise from not
adhering to this 30-day regulation.
After the job order has ended its run, you must wait at least 30 more days before filing
your ETA 9089 form. So, if your job order ran from January 1st to January 31st, you
would not be able to file the ETA 9089 form until March 3rd. The reasoning behind this
PERM filing process is the give potential U.S. job applicants the opportunity to apply for
the position after the order has been placed.
As with many of the documents related to the PERM ad requirements, we recommend
you keep printed copies of the SWA’s job posting as part of your PERM labor process
documents.
2. Ads in Newspaper/Professional Journals
You are required to place a job ad in 2 Sunday editions of a local newspaper with wide
circulation in the area of intended employment. So, if the position will take place in
Miami, your ad should be in the Miami Herald or a paper with similar recognition.
If the position is in a rural area which does not have a Sunday edition, the employer
should use the newspaper that has the widest circulation.
The PERM ad requirements state that the ad must include:
– Your business name
– Instructions detailing where applications and resumes should be sent
– A general overview of the position that gives potential applicants a good idea of what is
entailed
– Possible mitigating factors such as job location and/or travel percentages
3. Internal (in-house) Job Posting
Also known as a notice of filing (NOF), an internal job posting should be posted for 10
consecutive business days on your company’s physical premises. If it’s a union position,
proper notice must be given to the representative.
The NOF needs to include very specific language that alerts your current employees
that you are in the process of obtaining a PERM Labor Certification. This must also give
them the opportunity to submit documentary evidence that has a bearing on the
application.According to the regulations, it must contain the following information:
– business name and location
– general job description
– wages and other compensation
– your contact information including an address to send resumes
It is important not to ignore or forget this step as it can be the difference between the
success or failure of your application. Working alongside a qualified immigration lawyer
can help ensure that this aspect is not overlooked and is satisfactorily completed.
Here are some common reasons for why your PERM may be denied on account of the
NOF:
– Failing to include basic information such as the employer’s name, the wage for the
position, or the location of the position (even if the location is the place in which the
NOF is posted).
– Neglecting to add the NOF posting dates to your PERM recruitment report
– Not including the address of the Certifying Officer that is overseeing your case.
– Having job requirements or other information that differs from the ETA 9089.
Incomplete or inconsistent information is one of the easiest ways to be audited or to
have your application denied. To protect the efforts you’ve made in the PERM
recruitment process, make sure to pay attention to every detail and follow the
instructions carefully. The DOL is not given to entertaining any arguments for why their
rules were not kept.
4. Additional PERM Ad Requirements
On top of the above requirements, an employer can choose a combination of any 3
additional recruitment methods outlined below to meet the additional recruitment
requirement for professional positions:
1. Participation in a job fair that has a high likelihood of bringing in applicants that are
qualified for your position.
2. Posting an ad on the company’s website. Be sure to keep a record of the internet
screenshots taken of these ads.
3. Using a job search engine other than your own company’s website such as Monster.com
or Indeed.com.
4. Participation in on-campus recruiting if the job does not require several years of
relevant experience.
5. Placing an advertisement with a trade or professional organization. This could involve
advertising in a relevant academic or professional journal.
6. Using the services of a private employment firm. Be sure to keep copies of all contracts
and correspondence between you and this firm.
7. Incentivising employees to refer new recruits through rewards or benefits such as
bonuses or vacation days.
8. Placing an ad with a local college’s campus placement office.
9. Posting an ad in the local and ethnic newspapers of the relevant work area.
10. Taking advantage of radio and television advertisements. To prove that this ad took
place, keep a record of all contracts and payments made between you and the
advertising station.
It is important to note that each of these ads can have a PERM advertising duration of
any length of time whether it be just one day or several. The choice is up to you.
However, you must wait at least 30 days after the end of your ad campaigns to file your
ETA 9089 form. Becuase of this, it is often advisable to run the job order, notice of
filing, and all ads as concurrently as possible to avoid unnecessary delays.
Here is a PERM recruitment advertising sample that was posted online containing the
information required in each ad:
Note: You don’t need to include every minute detail pertaining to the job within the
advertisement but it should be thorough and include the basics like the name of the
employer, address, contact information and job outline. You do not necessarily need to
include the wage within the advertisement. However, if you choose to include it then it
should not be lower than the Prevailing Wage Determination.
NON-PROFESSIONAL PERM ADVERTISING REQUIREMENTS
Non-professional positions are only required to fulfill two of the steps. Those are placing
a job order with the State Workforce Agency (for 30 days) and placing the job ad in 2
consecutive Sunday newspapers.
PERM REQUIREMENTS FOR EB2 GREEN CARDS
If you are an employer looking to sponsor someone for an EB2 green card, PERM Labor
Certification will most likely be required. However, there are certain situations in which
an applicant is able to self-petition through the use of a National Interest Waiver (NIW)
which excuses the applicant from needing a job offer or a PERM.
To obtain an NIW, the applicant must be starting or investing in an enterprise that the
USCIS deems as having a substantial positive impact on the national society, economy,
or culture. The applicant must also prove that requiring a PERM in this situation would
not benefit the national interest.
If you are a prospective EB2 green card applicant and you believe that you may qualify
for an NIW, talk with your immigration lawyer to learn about the steps you need to
take.
PERM RECRUITMENT AFTER ADVERTISING
Once the job has been advertised, the employer is responsible for interviewing the
candidates who have met the requirements including U.S. citizens. Should the employer
reject U.S. citizen applicants, then you must document the reason for this in the
recruitment report.
The reason should be lawful and non-discriminatory. All recruitment should take
place 180 days before filing the labor certification application and should be completed
30 days before submitting the ETA 9089 form.
Due to the complexity of PERM recruitment and advertising, it’s best to consult an
immigration attorney to ensure the proper steps are being followed.
DOCUMENTS REQUIRED FROM THE EMPLOYER – PERM RECRUITMENT REPORT
Paper documentation is required throughout each step of the process. That means the
employer should have copies of resumes, applications, recruitment reports when
conducting interviews, etc.
The PERM recruitment report will also detail the number of hires as well as U.S. workers
not hired for the position. Be aware that there needs to be enough detail about the
rejected U.S. workers for an auditor to scan if that occurs. Remember, the DOL intends
to make sure that no foreign worker is displacing U.S. workers. Keep this in mind when
documenting the reasons for rejecting workers in your PERM recruitment report.
Also, as stated before, you should keep a meticulous record of all correspondence,
contracts, and payment receipts concerning your ad campaigns to provide sufficient
proof that you took the necessary measures to find a qualified U.S. job applicant. It is
also important for your PERM recruitment report to perfectly match the information
given on the ETA-9089 and the Notice of Filing to be posted in your place of business.
Boundaries When Rejecting U.S. Workers
There needs to be clear and lawful evidence for rejecting a U.S. worker. As the
employer, you need to judge whether the U.S. applicant could fill the job with a
reasonable amount of on-the-job training (if necessary). For example, you wouldn’t
expect an employer to spend several months training a worker in one of five necessary
skills.
Use your best judgment to evaluate each candidate and seek the advice of a qualified
attorney for more information. There may be PERM changes quickly approaching in line
with the Obama Immigration Plan. In particular, the DOL is focusing on techniques to
identify shortages/surpluses as well as updating the general requirements.
HOW THE PERM ADVERTISING PROCESS AFFECTS AUDITS AND SUPERVISED RECRUITMENT
There are two main ways that your PERM could be delayed, besides denial of course:
auditing and supervised recruitment. Keep in mind that these are not mutually
exclusive and can occur with the same PERM application and even simultaneously.
Under normal circumstances, you would keep a record of all ads posted as well as all
applicants that applied along with their reasons for rejection. Then, you would compile
all of this information in a recruitment report for the DOL to review before making a
decision on your PERM.
However, whether through random chance or because of an issue with your report,
there is always the possibility that you could be audited. If this happens, you and your
attorney must submit all supporting documentation to satisfy what the audit request
requires. It is important to note that withdrawing your application does not excuse you
from the audit, and you will be subject to whatever consequences arise from this
process.
A targeted audit can occur due to a number of factors, such as not providing sufficient
evidence for rejecting a candidate, not running your ads in the right places for the
correct length of time, not being able to pay the prevailing wage, or even having close
familial ties with the foreign beneficiary. Being audited can add between 9 to 18 months
onto your PERM processing time.
Supervised Recruitment
On the other hand, you could also be subjected to supervised recruitment. If there has
been a problem with your PERM process in the past, then the DOL may assign you a
Certifying Officer (CO) before your PERM recruitment process to review each document
as you place ads and interview candidates.
If the DOL decides to implement supervised recruitment after your recruitment is over,
then you may need to start from the beginning with your CO. This is usually the result
of major suspicions on the part of the DOL that your report or your documentation is
not accurate or legitimate. To help avoid audits and supervised recruitment, it is
important to hire a qualified immigration attorney to help you deal with anything that
arises.
PERM Denial
As with many aspects of immigration law, there is also the chance that your PERM
advertising process will be denied. This can be the result of simple mistakes on your
ETA 9089, a lack of supporting documentation for your advertising and recruiting, or a
violation of the PERM advertising guidelines.
If this happens, then you will need to take your denial letter to your PERM attorney.
With his or her help, there are a few options available to you:
? Motion to Reconsider: this is when you and your attorney either submit influential
evidence that was unavailable at the time of filing or make a valid argument for why
the evidence was and still is unavailable.
? Request for Review: this is essentially an appeal. Here, you and your attorney can
request for a third party, the Board of Alien Labor Certification Appeals (BALCA), to
review your case and make an unbiased decision.
Neda Zaman Esq.
Immigration Attorney in Encino, Los Angeles
Services in English Farsi, Arabic, Armenian, Turkish
Address; 16633 Ventura Blvd suite 510, Encino, CA 91436
Phone: +1(310)855-0992 | +1(818)290-3625
Email: NEDA@NEDALAW.COM