Program Electronic Review Management, or PERM, is a lengthy immigration application process. This process is suitable for employers who want to hire a foreign worker to meet a shortage of U.S. labor. For the foreign worker, PERM is an excellent way to obtain a green card.
The PERM process is lengthy and filled with traps. This article will briefly discuss the PERM process, the timeline, and challenges along the way to give the prospective PERM applicants some ideas of what to expect. This is by no means a tool to help people apply PERM on their own. Because the process is so complicated, we do not recommend attempting the process without true expertise.
Consultation and Common Issues
Every PERM begins with a thorough consultation. The attorney’s job is to spot issues that could pose challenge down the line. So they focus on a few topics. Basic eligibility issues come first. What is the position that needs to be filled? Where will it be performed? What are its duties and requirements, and do they include anything unusual compared to other similar jobs? Does the foreign worker meet the education and experience requirements, and can they obtain proof? Can the employer pay the foreign worker’s salary?
Besides eligibility, other concerns may include the foreign worker’s relationship with the employer. Has the worker has worked for the employer before? Does the foreign worker own part of the company or is a relative of a key person within the company?
Does the foreign worker have inadmissibility issues? Has he ever overstayed his visa or got into legal trouble? Was he ever a member of a communist or totalitarian party?
After discussing all of these and more questions, if the attorney decides there is an approvable PERM case, things can move forward.
Job Descriptions
A carefully tailored job description is at the center of the PERM case. Ideally, the job sought by the employer closely matches one of the professions listed on the Department of Labor’s databases. Deviations are acceptable, so long as the employer can collect business necessity documents to explain those deviations. If the employer needs the employee to speak a foreign language, or to possess special skills, or to perform unusual duties, they should be able to explain why.
Employers may be tempted to make a laundry list of qualifications that tailor to the foreign worker, but this is often not the best approach, as that can invite questions from DOL, who may issue audit that demands explanations and slow down the process. The best approach is always to set the requirements that reasonably meet the needs of the position.
ETA 9141
Once the job descriptions are set, the attorney helps the employer file an ETA-9141 to the Department of Labor. The purpose of this form is to request for a “prevailing wage” of the employer’s job opening. DOL has duties to ensure the employer pays a fair wage to the foreign worker, so it uses the employer’s input and its own databases to determine what wage should be paid.
This form takes about 7 to 8 months to be adjudicated. If the employer disagrees with DOL’s determination, they can appeal, but appeals will slow down the process.
Recruitment
Once the prevailing wage is issued, the employer and attorney must begin recruiting US workers for the job. If you’re asking, “But what about the foreign worker,” remember that PERM is a test of the US labor market. If the employer wants to hire a foreign worker, they must make sure there are no US worker able and willing to do the job first. The legally-mandated recruitments ensure that employer abide by this purpose.
The employer must notify its own workers or bargaining representative of the job opening, post job ads on local newspaper, and forward the job opening to the state’s workforce agency for further dissemination. If the position is professional, then additional recruitment steps must be done. All of the recruitment must be completed within a 150 day period.
If US workers apply for the job, the employer must conduct a good faith review of each application. They can only deny U.S. applicants for “lawful, job related reasons.” The law is quite extensive on this topic. If there is any doubt that the U.S. government takes this issue seriously, one only needs to look at the recent lawsuit against Facebook. To put simply, employer cannot disadvantage US workers during this hiring process. Applicant qualifications must be assessed fairly. If a U.S. worker is qualified for the job, or can perform the job with reasonable training, they should be hired.
ETA 9089
Once recruitment is complete, the form ETA 9089 can be submitted to DOL for labor certification. The form was newly updated in 2023 with quite a few significant changes, but AILA members have been quick to acclimate to the new form. Processing time for this form is exceedingly long – typically a year or more.
If DoL has questions regarding the nature of the position, they will issue audit to request for additional documents. If the initial consultation did its job, employers should already have business necessity documents prepared and ready for audit response.
EB-2 or EB-3 and the I-140 Form
After DOL approvals the ETA 9089, employer can then send the I-140 form to USCIS. USCIS’s job is to ensure that employer can pay the wages to the foreign worker, and that the worker is qualified for the position. USCIS typically does not revisit issue on availability of US workers. This takes two weeks with premium processing, a few months without.
If there are any document deficiencies, USCIS would issue a Request for Evidence. As you may have guessed, this slows down the process.
Visa Wait Line
All foreign worker must now spend some time in the visa wait line even after I-140 is approved, as there are only a limited number of EB-2 and EB-3 visas issued every year. For those born in China and India, the wait can be especially long.
In view of PERM’s own lengthy process (just under two years) and the years of wait even after I-140 approval, foreign workers who are currently in the U.S. must find ways to extend their nonimmigrant stay. H-1B is a common solution, even if the H-1B lottery gets more difficult each year.
I-485 or Consular Processing
Once visa becomes available, the foreign worker can apply for a green card. Those inside the US can apply to adjust status. Those outside can complete consular processing.
Shiao PLLC is an immigration law firm based in Washington, D.C. We emphasize honesty and thoroughness to deliver the best results for our clients. If you need immigration help, contact us.