ABCs of the PERM Labor Certification Process with Krystal Alanis of Reddy & Neumann, P.C.

We all know that the PERM Process can be a long and daunting path to US citizenship. One of Park’s own, Emily Yam Grant, recently consulted  with Krystal Alanis, Partner at Reddy & Neumann, P.C., to get a better understanding of the details, timing, and amazing legal work immigration attorneys undertake to get candidates to the finish line. Not all heroes wear capes!

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Q: Can you give a general overview of the PERM Labor Certification process?

There are typically three steps to the employment-based green card process: PERM Labor Certification, I-140 Immigrant Petition, and I-485 Adjustment of Status from non-immigrant status to that of a legal permanent resident or apply for a green card at a U.S. consulate abroad.

Most EB-2 and EB-3 green card applications require that a U.S. employer obtain a PERM Labor Certification from the U.S. Department of Labor (DOL). The PERM process aims to protect the wages and working conditions of U.S. workers and helps ensure that U.S. workers will not be displaced. Therefore, an employer sponsoring a foreign worker for permanent employment must first adequately test the U.S. labor market for “able, willing, qualified, and available” U.S. workers. 

The PERM Labor Certification process is usually the biggest obstacle to overcome because the process is lengthy, involves multiple steps, and requires careful strategizing to avoid mistakes that could lead to denial of the application. The fundamental steps of the PERM process include: Establishing the job description and minimum requirements for the job opportunity, obtaining a Prevailing Wage Determination (PWD), conducting recruitment, and adjudication of the PERM application by the DOL.

Q: As a service, Park handles the posting of recruitment efforts (advertisements) for clients. Can you explain why recruitment is necessary for this process and what it entails?

Conducting recruitment is crucial to the PERM labor certification process. Employers must test the U.S. labor market for “able, willing, qualified, and available” U.S. workers. If no such workers are found, only then can an employer file a PERM application on behalf of a foreign national on ETA Form 9089. This process is necessary to help ensure that U.S. workers will not be adversely impacted by hiring a foreign worker into a permanent position.

As part of the recruitment process, employers are required to post mandatory advertisements for the job opportunity. For example, the employer is required to post two Sunday print advertisements in a newspaper of general circulation in the area of intended employment and a 30-day job order with the appropriate State Workforce Agency (SWA). The employer must also post a Notice of Filing for 10 consecutive business days at the work location. Additionally, if the position is for a professional occupation, the employer is required to post at least three other forms of recruitment (the DOL provides a list of 10 forms to choose from). Due to regulatory timelines, it will take employers a minimum of 60 days to complete recruitment. However, the recruitment process frequently exceeds this 60-day period due to various factors.

Employers must ensure that evidence of the advertisements is properly documented based on regulatory standards. Posting advertisements correctly and for the required period of time is of utmost importance. To further complicate the matter, PERM advertisements are only valid for 180 days and the validity of the PWD must be taken into account when determining when a PERM application can be filed. Mistakes during the recruitment process can lead to missed filing deadlines or denial of the PERM application in the event of an audit. 

Q: What factors can an employer consider when determining whether an applicant is qualified for the position?

Once recruitment begins, employers may start to receive resumes from applicants. Employers are only allowed to reject U.S. workers for lawful job related reasons. The following are examples of lawful job related reasons for rejection:

• The U.S. worker does not meet the minimum requirements for the position: The employer can only disqualify an applicant based on the minimum requirements for the position. The employer cannot disqualify an applicant based on preferences or subjective criteria. The employer must also explain in a recruitment report why each applicant does not minimally qualify for the role. In its analysis, the employer must explain why the applicant’s deficiencies cannot be remedied through a reasonable period of on the job training.
• The applicant is unwilling to accept the offered wage: In order to reject on this basis, the employer must first extend an offer to the applicant with the listed salary.
• Applicant is not a U.S. worker: A “U.S. worker” per DOL regulations is a worker who is: a U.S. citizen or U.S. national; a U.S. Lawful Permanent Resident; an individual admitted as a refugee; an individual granted asylum.

Q: PERM processing delays are no secret and have caused a major impact on employers and their employees. What can be done to minimize delays from the Employer/Employee perspective?

Over the last few years, processing times for PWDs and PERM applications have drastically increased. This has caused major setbacks for both employers and their employees. Unfortunately, the DOL does not offer premium processing. Nevertheless, there are some proactive steps that employers can take to minimize delays, including: starting recruitment while the PWD is pending, ensuring the PERM application is submitted error free, becoming familiar with audit triggers, and being prepared to respond to an audit promptly and properly.

Q: What are some PERM audit triggers employers should be aware of in order to minimize the risk of receiving a PERM audit?

The DOL issues 2 types of audits: Random and Targeted. The DOL’s random selection process makes it impossible to entirely avoid the chance of an audit. The DOL can also issue targeted audits that are triggered by certain aspects of the PERM application. In such cases, the DOL may request additional information and documentation directly related to the triggering issue. Although audit triggers can change based on a variety of factors, here are a few to consider:

• Minimum requirements are not normal for the occupation or exceed the Specific Vocational Preparation (SVP) level (Business necessity explanation may be required).
• Position requires a degree (Master’s or Bachelor’s) but no experience.
• Position requires less than a Bachelor’s degree.
• A familial relationship exists between the foreign worker and the stockholders, corporate officers, incorporators, or partners.
• The employer is a closely held corporation or partnership in which the foreign worker has an ownership interest.
• The foreign worker is one of a small number of employees (10 or less employees).
• Position has a foreign language requirement (business necessity explanation may be required).
• Position involves a combination of occupations (business necessity explanation may be required).
• Certain situations where a layoff of U.S. workers has occurred. 

Q: As a service, Park provides a Business Necessity letter from a professional evaluator to supplement an employer’s business necessity statement. You stated that an employer’s minimum requirements for the sponsored position that exceed what is normal for the position can trigger a business necessity audit. Can you elaborate on the specifics of a business necessity audit?

While the DOL may issue a business necessity audit for various reasons, the most common cause is when the minimum requirements exceed what is “normal” for the occupation or if the job requirements exceed the SVP level assigned to the occupation. Simply put, SVP refers to the amount of time required to perform in the position, taking into consideration education, experience, and training.

To establish a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner. To respond to this type of audit, an employer can, for example, provide detailed evidence of the employer’s type of business, complexity of the position, industry standard (job postings with similar requirements), contract requirements, demanding client expectations, and prior hiring practices. The employer’s statement can be enhanced by including an expert opinion (Business Necessity Letter) from a professional evaluator.

Q: Generally, what are your top 3 recommendations for employers starting the PERM Labor Certification process for the first time?

• Familiarize Yourself with PERM Requirements: Employers should have a general understanding of the PERM program’s regulations, guidelines, and documentation requirements. This includes understanding the job posting and recruitment process, prevailing wage determination, and specific related obligations.
• Maintain Detailed Records: Employers should keep detailed records of all steps taken during the recruitment process, including job postings, advertisements, resumes received, and responses from potential applicants. Documentation plays a crucial role in demonstrating compliance with PERM requirements and may be requested in the event of an audit.
• Seek Professional Guidance and Start Early: The PERM process is complex and one misstep can derail the entire process and cost the company time and money. Employers should strongly consider working with a qualified immigration attorney who can provide a plan of action for the company’s specific needs. Further, delays in PERM processing times present a major problem for employers and foreign workers. Employers should plan to begin the PERM-based green card process as early as possible to avoid potential issues with the foreign worker’s temporary work visa status and ability to work in the U.S.