PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. An employer, for the sake of this process is defined as a person, firm, association, or corporation with an opportunity for full-time employment at a location within the United States, and in the possession of a valid Federal Employment Identification Number (FEIN). See 20 CFR §656.3. Before the employer can petition to bring the immigrant worker to the United States, (s)he must apply for labor certification from the Department of Labor (DOL). If approved, the Secretary of Labor then certifies there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application to fill the position, and that the employment of an immigrant worker would not adversely affect the wages of U.S. workers similarly employed. See 8 U.S.C. 1182(a)(5)(A).

The PERM approval process is slightly different from the approval process for temporary workers. The Application for Permanent Employment, ETA 9089, requires that the employer already have received a prevailing wage determination (PWD) from the DOL for the job opportunity in question. Included on the employer’s ETA 9089 should be information received from the National Prevailing Wage Center (NPWC) when the PWD was made, including: the prevailing wage tracking number; the Standard Occupational Classification (SOC) code for the occupation listed on the PWD request; the occupational title associated with the SOC assigned by the NPWC; the skill level of the job as determined by the NPWC; the prevailing wage rate as determined by the NPWC; the source of the determination (e.g. Collective Bargaining Agreement, survey, etc.); and the dates of the prevailing wage’s issuance and expiration. See www.foreignlaborcert.doleta.gov for more information.

Summary: PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. PERM applicants must file form ETA 9089 with the Department of Labor.

The U.S. Department of Labor (DOL) has announced a new centralized processing for permanent labor certification applications (also know as PERM) applications. Effective June 1, 2008 -

• Processing of all PERM applications will be centralized at the Atlanta National Processing Center (NPC).
• Applications for H-2A, H-2B, H-1C and D-1 will be processed at the Chicago NPC
• Requests for withdrawal of PERM applications must be submitted to the Atlanta NPC
• Requests for withdrawal of labor condition applications (LCAs) for H-1B, H-1B1 and E-3 non-immigrants that is being paper filed
  must be submitted to the Chicago NPC
• Employers filing paper LCAs due to a physical disability must file with the Chicago NPC.

NOTE: In addition, all paper applications will need to be filed with the correct processing centers. The DOL will forward any incorrectly filed applications received within the first 15 days after June 1^st to the correct location. All applications filed at the wrong NPCs after June 16^th 2008 will be rejected.

Speculations based on the Department of Labor’s recent increase in audits and the resulting delay in case processing, indicate that PERM processing times are going to stretch beyond the 40-60 day period that it usually takes. We cannot confirm this though as PERM processing times are not published. Since DOL has recently stated that around 40% percent of recent PERM cases are being audited, and going by the fact that audited cases take several moths to process, we believe we can comfortably speculate on the time issue.

PERM (Program Electronic Review Management System)

Through a screening agency called Employment and Training Agency (ETA), the US Department of Labor (DOL) handles Permanent Labor Certifications. ETA approves the employment of foreign nationals who fulfill its requirements before forwarding their cases to the Department of Homeland Security that issues their visas.

ETA examines documents filed by employers to check mainly if:

1) a fair recruitment and compensation procedure is followed,
2) a US citizen is unavailable to fill the position,
3) the offer will not negatively affect US workers.

As of March 28, 2005, the department introduced an electronic system for efficiency and to reduce processing time. Employers now file ETA Form 9089 online directly with DOL, not the old Form ETA 750.

The general qualifying criteria for certifications are:

1) the position must be full-time,
2) there should not be restrictive requirements or descriptions except in cases of “business necessity,”
3) the payment should confirm to the “prevailing wage”.

Employers have the option of filing ETA Form 9089 electronically that must be signed immediately by the employer, alien, and preparer. The employer should retain all supporting documents for five years.

PERM replaces the old RIR (Reduction in Recruitment and paper-based certification) filed with the DOL or SWA (State Worker Agencies). It evaluates applications using a “decision logic” program. While employers must compile supporting documents, DOL retains the right to “audit” employer on these documents later. “Audit” red flags include size of company (less than ten employees), family relationships, qualifications beyond the minimum DOL requirements, and cobbling together more than one occupation. Employers register directly at DOL Website without representation. They will receive by mail a user ID, password, and a PIN. They may, however, issue sub-accounts to their attorneys who will then be able to modify and finalize ETA 9089. The selection processes for Special Handling (college and university teachers) need to occur with 18 months of filing date and ONE ad in a professional journal could be considered adequate for such cases.

According to DOL, online processing of labor certification takes only 45-60 days from filing date. A procedure of recruitment and relevant courses of action must be completed at least four months before filing. PERM clears some cases in a matter of weeks or it can take months. Checking “Other” in the ETA 9089 form wherever applicable is not a red flag invitation for “Audits.” In some cases, it might actually be a necessary approach when the position requires highly specialized skills. What this translates to is that a “business necessity” is about crafting a documented argument to justify non-standard requirements.

State Workforce Agencies (SWA’s) provide valid and current prevailing wage determination data to be entered into the ETA 9089 without delay (within 30-days from the date of the placement of a job order). Employers should clearly communicate availability of the positions at least a month (but not more than six months) before filing the application. They must also advertise the position for at least two different Sundays in major newspapers. If the job requires an advanced degree or experience, employers should also use professional journals. Live-in domestic worker cases include additional requirements like provision of private accommodation other than basic certification regulations. “Business Necessity” cases such as foreign language skills must be satisfactorily justified. Education paid for by employers will not be considered. US workers are entitled to priority hiring if the employer laid them off within six months preceding filing. Only competitively recruited college and university teachers qualify for a waiver of DOL certification. Existing procedures apply to athletes. DOL may retract all certifications on reasonable ground, which applicants are allowed to challenge.

All supplemental documents are subject to “Audit” by DOL at anytime, by random selection or if they fit DOL’s “Audit” profile. Employers are responsible to transparently convey the availability of the jobs including postings on the Internet. Currently, there are no fees attached to electronic filing.

Unlike the previous system that used to take up to 5 years, PERM reduces the processing time to 45-60 days.