The PERM or Program Electronic Review Management System Labor Certification was created by the Department of Labor early in 2005 and is the DOL’s most recent program for permanent labor certification program. It is essentially the first step in the process of applying for employment-based permanent residency (green card). The objective of PERM is to defend U.S. workers and the job market. The PERM applicant must submit a comprehensive application to the Department of Labor in order to demonstrate how his/her exceptional skills cannot be duplicated by a U.S. worker. The EB-2 and EB-3 both require the applicant to obtain a PERM labor certification before applying for the employment-based immigrant visa, unlike the EB-1 First Preference Visa.

Employers Seeking to Sponsor

For employers seeking to sponsor a specific employee for a temporary work visa, employment-based green card, or wishing to recruit employees from abroad, the PERM process generally must be completed prior to submitting any visa application. The general purpose of PERM is to demonstrate that offering a position to a foreign worker will not displace U.S. workers who have the minimal qualifications for the job in question. The PERM application itself is initiated by the employer and is often completed in conjunction with employee-driven visa applications.

The PERM Process

The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the labor market for minimally qualified U.S. workers before filing the application. Under PERM, employers need to obtain a Prevailing Wage Determination (PWD) from the applicable State Workforce Agency (SWA) and conduct recruitment for the open position. If there are no able, qualified, and willing U.S. workers, who apply for the position, the employer must complete and submit a detailed form about the job duties, minimum requirements, wages, recruitment efforts, recruitment results, etc. to a DOL PERM processing center.

Setting Up an Employer Account

The PERM process requires that an employer registers online, set up an account, and create a sub-account for their attorney. It is imperative that employers set up their accounts themselves. The Department of Labor has stated that cases will be denied when it has been determined that someone other than the employer created the account. It is advisable, however, for employers to consult an immigration attorney prior to starting this process in order to ensure that they correctly complete the registration process.

Briefly, the following are four key steps that employers must take in the online filing process:

1. Establish on online account.
2. Designate an authorized attorney to allow access to the account.
3. Prepare and submit the application (either yourself or via the attorney).
4. Respond to the Department of Labor’s brief questionnaire sent by email or conducted by a DOL representative if you do not complete the email questionnaire within seven days.

Qualificiation Stipulations

It is not an acceptable practice to tailor the job requirements to the background of the foreign national employee that the company is sponsoring, as the regulations expressly prohibit this practice. This is particularly true if an employer attempts to hire a foreign national and then tailors a job description to that person so as to specifically exclude qualified U.S. workers. As a practical matter, the foreign national’s qualifications, a company or organization’s internal job description, and past company hiring practices will dictate the minimum requirements for the labor certification application.

National Interest Waiver

A few highly qualified individuals from certain categories of professionals, like registered nurses, are exempt from PERM requirements. National interest waivers are also available in situations where prospective immigrants would make important contributions to the nation. A very few candidates may self-petition for a National Interest Waiver, however a PERM application can be filed for any candidate with the support of his or her employer.