According to the DOL, the new PERM process is designed to eliminate the traditional labor certification process and create a single automated process for labor certifications that is based primarily on the current procedures for RIR. Unlike the previous RIR program, a PERM application can be filed in as little as 37 days and the DOL processing time is designed to be significantly shorter.
What are the qualifying criteria?
- The employer must hire the foreign worker as a full-time employee
- The employer must make an honest effort to make the position available to U.S. workers often by advertising the job in widely distributed newspapers, journals, and other publications
- The job requirements must follow standard criteria for hiring in the U.S. and may not be tailored to the worker’s qualifications.
- The employer must document that the job opportunity has been and is being described without unduly restrictive job requirements. This can only be waived if the employer can make a strong case to prove hiring a particular foreigner arises from business necessity.
- The employer must pay the prevailing wage or more for the occupation in the area of intended employment.
How does PERM get processed?
- The employer must complete and file an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, statement of the prospective immigrant’s qualifications and other special capabilities the employee must have to perform the job.
- Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer (when the application is prepared by a third party or a representative) in order to be valid. Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer (if applicable).
- Before filing ETA Form 9089, the employer must request a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA) in the appropriate geographical area of intended employment. The employer must, then, attach the information obtained from SWA with the ETA Form 9089. SWA provides information on the prevailing wage, the prevailing wage tracking number (if applicable), the occupation title, the skill level, the wage source, the determination date, the expiration date and other relevant details.
- All employers filing the ETA Form 9089 must demonstrate they have conducted recruitment before filing the application. This condition does NOT apply to colleges or universities sponsoring faculty whom they recruited on a competitive basis. Similarly, exemptions are allowed for Schedule A Occupations (See Definition at the Bottom) and sheepherders. When hiring a foreigner, the employer must categorize the lawful job-related reasons for the rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to reveal the individual U.S. job applicant’s personal information.
- Supporting documentation need NOT be filed with the application. The employer must, however, make available the required supporting documents if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it.
- Employers must retain ALL supporting documents for five years from the date of filing the application for Permanent Employment Certification.
- An employer may refile a pre-PERM application for labor certification by withdrawing the original application and submitting an application for an identical job opportunity within 210 days. The new application must comply with all requirements of the new PERM regulation.
What are the filing options for PERM?
Employers have the option to file an application electronically (using web-based forms and instructions) or by mail. The Department of Labor recommends that employers file electronically, however. Electronic filing is faster and it will ensure the employer has provided all required information accurately because electronic applications cannot go through if the required fields are not fully completed. Employer can access www.plc.doleta.gov and, after registering and setting up an account, electronically fill out and submit an Application for Permanent Employment Certification (ETA Form 9089). The Employer Profile you set up will help you to:
- Save time and efficiently retain your general information in an electronic format
- View the status of your labor certification applications
- Track newly submitted labor certification applications
- Email saved labor certification applications to others within the company
- Add new users to your account
- Withdraw labor certification applications when necessary
- Update your profile information
Filing by Mail
National Processing Centers have been established in Atlanta and Chicago. Employers submit paper applications to the processing center with responsibility for the state or territory of the intended employment.
Finally, if the appropriate National Processing Center approves the application, a Certifying Officer will stamp the ETA Form 9089 and mail it to the employer/agent who submitted the application.
How do I file the USCIS petition?
The employer must file Form I-140 (Immigrant Petition for an Alien Worker) with the U.S. Citizenship and Immigration Services (USCIS). The employer must attach the certified ETA Form 9089 to a completed USCIS Form I-140. Appropriate fees must be included and the application package must be submitted to the appropriate USCIS Service Center.
Schedule A Occupations
Schedule A is a list of occupations for which the Department of Labor has determined there are not sufficient U.S. workers who are able, willing, qualified and available. Schedule A establishes that the employment of foreigners in such occupations will not negatively affect the wages and working conditions of U.S. workers similarly employed.
Schedule A Occupations include:
- Physical Therapists who have fulfilled all the requirements to take the physical therapist licensing examination in the state in which they propose to practice physical therapy
- Professional Nurses who:
- Possess a certificate issued by the Commission on Graduates in Foreign Nursing Schools (CGFNS)
- Passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN), or
- Hold a full and unrestricted (permanent) license to practice nursing in the state of their intended employment.
- Sciences or Arts (except performing arts)-Foreign workers who possess exceptional professional capabilities in the sciences or arts including college and university teachers of exceptional ability. Foreign workers in this category must have been practicing their science or art during the year before the application and intend to practice the same science or art in the United States. “Science or Art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.
- Performing Arts – Foreigners of exceptional ability in the performing arts whose work during a period of one year before the application required, and whose intended work in the United States will require, exceptional ability.
Employers must apply for a labor certification for a Schedule A occupation by filing an ETA Form 9089 in duplicate with the appropriate USCIS Center, NOT with the Department of Labor or a SWA.