PERM processing times shorten dramatically

As of mid-2011, The Department of Labor has shortened processing times for PERM applications from around a year to about 3 months for approvals, and from two years to about 8 months in total for cases that are audited.

The advertising requirements under PERM take about three months to complete, and must be completed before the application is filed. Before the advertising starts, it is necessary to get a prevailing wage from the Department of Labor, which is currently taking 4 to 6 weeks. This means in some cases our clients will have an approved labor certification about 6 to 9 months from the date the process is started if all goes smoothly.

What is PERM? It is a new method of conducting labor certification. PERM went into effect on March 28, 2005. PERM is now the only way to file labor certifications. Labor certification is required for most employment based green card applications. Labor certification is a determination by the Department of Labor that there are no U.S. workers who are qualified and available for the job in question.

PERM is an improvement on the previous system for two reasons. First, it is much faster. Second, it has clear rules that must be followed. If the rules are followed, and there are no U.S. workers available, the application will likely be approved.

PERM applications are filed directly with the Department of Labor over the Web. Now that prevailing wages are determined centrally by the Department of Labor, the state workforce agencies are no longer directly involved in processing applications.

Before filing an application, the employer must conduct specified recruitment activities. This recruitment must include the following:

• Two Sunday newspaper ads (or one Sunday newspaper ad and a professional journal where appropriate)
• A job order through the state workforce agency
• For professionals, at least three other forms of recruitment, which can include a commercial Internet ad; an ad on the employer's Web site; an internal incentive program; participation in a job fair; on-campus recruiting or use of a campus placement office; local or ethnic newspapers; a trade or professional journal; a radio or TV ad; and the use of headhunter agencies.

The advertising must have occurred within six months of filing the application. All but one ad and an internal notice must be placed a minimum of thirty days before the application is filed.

The employer must also post a notice of the filing, including the salary, at the place of employment. If the employer uses an intranet to post job openings, the same notice must be placed on the intranet.

No documentation of any kind is submitted with the application. However, the employer must maintain copies of the ads, resumes, and other documents showing that the recruitment actually occurred as reported. The DOL will audit selected cases. Applicants must then produce all supporting documents in thirty days. If the documents cannot be immediately produced, the application will be denied and the employer may be prohibited from filing future applications. Therefore, it is critical that all the supporting documentation be in place before the application is filed if the case is audited.

PERM does not change the special rules available for Schedule A occupations including nurses and physical therapists (who are pre-certified). "Special Processing" is still available for university teachers who may apply under an easier-to-meet standard and use different recruitment methods, but still use the PERM application.

Effective July 16, 2007, a new Department of Labor regulation prohibits payment of any costs of PERM, including attorney fees, by the foreign worker. The employer must now pay all such costs. The employee can still pay for the I-140 and adjustment applications. Also, this regulation prohibits substitution of beneficiaries on a labor certification. The regulation also provides that labor certifications expire after six months unless the I-140 has been filed.

We have successfully handled many labor certifications under the PERM system for a wide variety of occupations for jobs located all over the United States. Our firm looks forward to helping companies and their foreign workers obtain labor certifications under the PERM system quickly and efficiently.