Alien Labor Certification (PERM)

PERM is a new procedure for alien labor certification that was designed to make the process faster and more efficient. Alien labor certification is the process through which an employer applies to have a particular job certified by the Department of Labor as a position for which no United States worker is qualified or available. It is the first step in the most common employment-based method for an alien to receive permanent resident status (a “green card”). PERM is an acronym for “Program Electronic Review Management Process.” It became effective March 28, 2005.

Time Frame

The Department of Labor has stated that it will endeavor to process PERM cases within six weeks. Therefore, with an average of two months prior recruitment, the process should take less than four months unless the Department of Labor performs an audit. Audits may occur either due to questionable application content or by random selection.

After your case has been submitted, you may access your employer’s online PERM account to see your case status.

Job Offer

As with the previous alien labor certification system, the employer must offer the alien a job at a salary approved by the Department of Labor and must document that there are no United States workers qualified and available for the position.

Employer Qualifications

The employer must have a federal and state tax identification number and must be able to document its ability to pay the wage offered through its annual report, tax returns, audited financial statements or history of having paid the wage to the alien employee.

Recruitment

The employer must recruit United States workers for the position. The job advertisement must be placed in the newspaper of general circulation in the employer’s area for at least two Sundays, the job must be listed with the State Workforce Authority and the employer must make an in-house posting for at least ten consecutive business days that states the salary offered and that includes employer’s in house media.

Employer’s Expense

New regulations effective July 16, 2007 require the employer to pay for the advertising and for the portion of the alien’s attorney fees associated with the PERM process if the alien and the employer are represented by the same attorney.

Professional Position

If the job is a professional position (a job that requires a bachelor’s or higher degree), the employer may place the ad in the newspaper of general circulation in the employer’s area for one Sunday and in a relevant professional journal instead of two consecutive Sundays. A professional position also requires at least three of the following additional types of recruitment:

  • Job fairs
  • Employer’s web site
  • Job search web site other than employer’s
  • On-campus recruiting
  • Trade or professional organizations

Documentation

No supporting documents are filed at the Department of Labor with the PERM application. PERM is based on an honor system. However, supporting documents must be kept at the employer’s office and submitted in case of an audit. The employer must retain the documentation for a five year period after the application was submitted.

Validity and Transferability of Labor Certification

An approved alien labor certification application must be used within 180 days or it will expire. The certified application cannot be transferred for use by another qualified alien.

Common Employer Concerns

As noted above, the new PERM regulations effective July 16, 2007 require the employer to pay:

  1. The cost of the advertising
  2. The alien’s attorney’s fees associated with the PERM process if the alien and the employer are represented by the same attorney

Must I employ the alien during the PERM process?

No. There is no requirement that the employer employ the alien. If the employer does employ the alien, there is no requirement that the employer employ the alien in the position offered in the PERM application. The PERM regulations only require that the employer make good faith job offer for a future job.

Must the employer employ the alien at the time of the application?

No. In fact, the alien does not even have to be an employee of the employer or present in the United States. Again, PERM is based on a good faith offer of a future job.

Must I interview applicants for the position?

If no resumes from qualified applicants are received, the employer need not contact any applicants. If the employer receives a resume from an applicant who appears to be qualified, the employer may contact that applicant by certified mail to seek more specific information respecting his or her qualifications. If it seems clear that an applicant meet the minimum requirements for the position, the employer must interview the applicant or discontinue the process.

Must I employ the alien in the job after the alien receives permanent resident status?

The job offer is required to be a bona fide job offer. However, there is no requirement that the alien accept the position after receiving permanent resident status. Because the permanent resident application process may take several years, it is not uncommon for the alien to work in a different position for the employer or even to work for a different employer after receiving permanent resident status.

Will a PERM application result in an audit by the Department of Labor, the Internal Revenue Service or any other government agency?

Department of Labor may select an individual employer for an audit. However, an audit is no cause for alarm. The employer will simply be required to send the Department of Labor its supporting documentation to show that the proper procedures have in fact been followed. There is no provision in the regulations for involvement of the Internal Revenue Service in any step of the process or for any intercourse between the Department of Labor, the Internal Revenue Service or any other government agency.