What is PERM? A new law creating a permanent wave of immigration for foreign laborers in America?
Not exactly. PERM, which stands for Program Electronic Record Management, refers to the relatively new regulations (or laws) pertaining to how alien labor certifications are filed and adjudicated in the United States. These regulations went into effect on March 28, 2005.
What is a labor certification? What does it do?
A labor certification is a document issued by the United States Department Of Labor indicating or “certifying” that an employer has a position that but for the alien, he is unable to fill. That is to say, there are no Americans who are at the same time qualified, available, and interested in the position. Furthermore, the Department of Labor has concluded that the employment of the alien will not “adversely affect” American workers in similar positions.
An approved labor certification contains a stamp that states as follows: Pursuant to the provisions of section 212 (a)(5)(A) of the Immigration & Nationality act as amended I hereby certify that there are not sufficient U.S. workers available and the employment of the above will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. It is signed by the Certifying Officer (or “CO.”)
An approved labor certification is the first step for many aliens seeking to immigrate to the United States through their employment. To be approved, the employer, who is also the petitioner, must demonstrate that he has offered and indeed advertised the position in question to Americans at the “prevailing wage” but was unable to fill the position.
What does “prevailing wage” mean?
Generally, “prevailing wage” refers to the going rate or the fair market rate that other employers pay American employees to perform the occupation for which the alien is being sponsored. In other words, an employer who is filing an application for labor certification on behalf of a software engineer may not advertise the position with an offer to pay minimum wage and say, “Look, no Americans applied” and expect the labor certification to be approved. The regulations, intended to protect the American work force, require that the employer demonstrate that the position was offered at the prevailing wage but no qualified Americans were “able, willing, qualified, and available.”
But isn’t that ridiculous? Aren’t there always qualified Americans available for good jobs at the “prevailing wage?”
Not necessarily. It depends on the position and the area of intended employment. For example, my office is currently assisting an employer who runs a fencing school and requires the services of an experienced fencing instructor who is schooled in European fencing techniques. Without the alien he is sponsoring, he would be unable to fill this position.
How does an employer know what the prevailing wage is?
An employer or attorney can request the prevailing wage by faxing a request to the SWA (State Workforce Agency). In California, this is the EDD (Employment Development Department). The prevailing wage request must include a description of the job as well as the requirements.
What happens after the labor certification is approved?
At the Labor Certification stage, the employer had to offer the position at the prevailing wage. After approval, it must be established that the employer is able (and still willing) to pay the alien the prevailing wage for the job offered. This is usually accomplished by providing tax returns from the time the application for labor certification was submitted until the present. It must also be demonstrated that the alien beneficiary possesses the qualifications (i.e. experience, education) for the position offered. (Form I-140, Petition For Alien Worker, is used for this purpose.)
When PERM was announced, there seemed to be almost an aura of excitement surrounding it. What was all the buzz about?
Traditionally, labor certifications have taken years to be processed. It has been a frustrating process for all concerned, including employers, aliens, and immigration attorneys. An employer was required to place an ad for the three consecutive days in a newspaper of general circulation. Responses to the ad were sent to the SWA who forwarded these responses to the employer. The employer had to explain why the applicants were not as qualified as the alien being petitioned or explain that the applicants were not interested in the position.
In the late 90s, these problems were alleviated somewhat by the introduction of “RIR,” Reduction in Recruitment. Under the RIR regulations, an employer could avoid the traditional recruitment procedures by showing a pattern of unsuccessful recruitment for a period of 180 days prior to the submission of an application for labor certification. Under RIR, an employer was required to place a minimum of one newspaper ad and demonstrate the use of three other sources of recruitment in the 180 days prior to submission of the application. If the application appeared satisfactory, it was forwarded to the Department of Labor.
Although speedier than supervised recruitment, the RIR process could also take many years. In April of 2001, the State Workforce Agencies throughout the United States were flooded with applications. This significantly delayed the RIR process.
PERM promised a speedy answer.
How speedy is it?
At first, it was suggested that labor certifications submitted under PERM would be processed within six to eight weeks after filing. Although this is not always the case, the process has clearly proved to be faster than the traditional or RIR Labor Certification process.
What is new about PERM?
As the name suggests, PERM is electronic. Applications may now be filed online. Also, PERM provides new specific requirements for recruitment of professional and non-professional positions.
How does one file a labor certification application under PERM online?
The application may be filed electronically after the employer registers online. This is accomplished by the employer logging on to the website for the Department of Labor at www.plc.doleta.gov and following the instructions. After the employer registers, he should receive two emails. One of these emails contains a PIN (personal identification number) and the other contains a username and temporary password.
What does the employer need to do if he wants to allow his attorney to file a labor certification application online?
He must register online as described above. Then, after receiving the two emails, the employer will need to go online again, and log on to the DOL website using the new username and temporary password. He will then create a permanent password. Next, he will need to click “Manage Account” and select “Add New User.” By so doing, he can create a sub-account for his attorney. (Employers should be aware that their job is not finished after they receive the two emails with the PIN, username and temporary password. They will need to log in at least twice in order to create a sub-account for their attorney.)
If an employer wishes to sponsor an alien through PERM, what must he do to demonstrate that he cannot find qualified Americans for the job?
It depends on the position. For a non-professional occupation, (i.e. one that does not require a bachelor’s degree), the employer is required to demonstrate recruitment through three means. He must place two Sunday ads in a newspaper of general circulation, he must post a “notice” of the job offer at his place of business for ten business days, and he must place an ad with his State Workface Agency (SWA) for 30 days. Recruitment must take place between 30 and 180 days before submitting the application.
O.K. So the employer must place 2 Sunday ads in a newspaper. What should these ads say? What information should be included?
The newspaper ads must identify the employer, the location of the job, and describe the position so that qualified Americans who are interested in the position may apply. The wage does not have to be included here. The ads must run on two Sundays, which can be consecutive.
For example, let’s say that Telly’s Telecommunications company wants to file a labor certification on behalf of a computer programmer. The ad might read as follows: Telly’s Telecommunications in Santa Monica, CA seeks computer programmer. Send resume to Telly’s Telecommunications, 123 Ocean Park Blvd, Santa Monica, CA 90401.
What does the SWA requirement involve?
The employer must also place a job order (i.e. advertise the position) for 30 days with the State Workface Agency of his state. In California, this is the EDD and the order is placed online. To register, an employer must provide his seven digit California employer ID number or EAN. This number should not be confused with his federal employer ID number.
What does the notice or “posting” requirement entail?
The notice (of a job offer) must be placed at the employer’s place of business for 10 business days. (Prior to Perm, the rule was simply 10 consecutive days.) It must identify the position and the employer and inform one how to apply for the position. It must also identify the appropriate processing center for the Department of Labor that should be notified if there are interested American candidates. The notice, unlike the other required forms of recruitment must include the prevailing wage.
In addition to the posting, PERM further requires that an employer provide notice of the job offer by using any and all in-house media, whether electronic or printed, in accordance with the normal procedures used in recruiting for other similar positions in the employer’s organization. This means if the employer normally uses its own website or newsletter to announce job openings, the job offer pertaining to the labor certification should also be posted there.
What must an employer do to comply with the advertisement requirements for non-professional positions?
For non-professional positions, (i.e. positions which do not require a baccalaureate), the three forms of recruitment discussed above are all that are required: posting a notice at the place of business for 10 consecutive business days; placing two newspaper ads on Sunday in a newspaper of general circulation; placing an order with the SWA for 30 days. This recruitment must take place 30 to 180 days prior to submission of the application.
What kind of recruitment must be conducted for professional positions?
For professional positions, the above three forms of recruitment must be used as well as three other forms of recruitment, which may be selected among radio and television ads, internet ads, job fairs, on campus recruitment, and the use of local or ethnic newspapers.
Let’s say the employer places the required ads and gets flooded by impressive resumes from American applicants? What he supposed to do, fire the foreigner that he is in the process of sponsoring and hire one of the Americans?
Yes. Unless he can demonstrate that the American applicants were not “able, willing, qualified, and available.”
How does he do that?
By reviewing the resumes submitted and conducting interviews of any applicants that appear to have the necessary qualifications. Prior to submission of the application for labor certification, the employer should prepare a recruitment report, indicating the number of resumes received, discussing the interviews conducted, and explaining the reasons American applicants were rejected.
What is required in the recruitment report?
The recruitment report must show the reasons why the American applicants were rejected. These reasons must by “lawful job-related” reasons. The report must also provide the number of U.S. applicants rejected in each category.
Therefore the recruitment report might state something to the effect of: The company received six resumes for the position. Four of the applicants clearly did not have the required experience and were therefore rejected on this basis. The remaining two applicants were contacted and indicated that they were no longer interested in the position.
What if an employer wants to sponsor someone he trained. Let’s say the employer trained someone from Mexico to be a machinist. The job generally requires at least two years of experience. Can the employer sponsor the alien he trained?
The general rule is that if the job offered requires experience, this experience must be acquired elsewhere, i.e. not from the sponsoring employer. But there is an exception by which experience gained with the employer can still be used to fulfill the experience requirement. Prior to PERM, the rule was that if the experience acquired with the employer was acquired in a position that is “sufficiently dissimilar” to the one currently being offered, this experience could be used to fulfill the experience requirement. The rule under PERM is significantly similar. (Or to put it in labor cert language, the two rules are not “sufficiently dissimilar.”)
The current rule under PERM states that over 50% of the duties of the two positions must be different. For example, if a restaurant wishes to file a labor certification on behalf of a chef who gained his experience as a chef with the sponsoring employer, the employer may sponsor him for a position as “supervisory chef” provided that over 50% of the duties in the two positions (“chef” and “supervisory chef”) are different.
What are the risks for the employer of hiring someone who is undocumented?
The mere fact that an employer is sponsoring one for a labor certification does not mean that such employment is lawful. It is not until the alien applies for residency that he may apply for employment authorization. When this work authorization is received, the alien may lawfully work for the employer. Until then, the employer could potentially face criminal penalties for hiring someone who is undocumented.
What costs are involved in this process?
There are no fees to file an application for labor certification. However, the required recruitment and placement of ads involves fees as does legal representation, if one chooses to be assisted by an attorney.
If an application for labor certification is approved, is there a time limit by which it must be used?
As long as the position still exists and the employer still wishes to sponsor the alien, the labor certification does not expire. It has been possible to substitute the alien employee, but this practice may be soon be eliminated.
What is the first step for an employer who wishes to sponsor an employee for Labor Certification?
The employer should first determine the prevailing wage. Although the alien does not have to be paid the prevailing wage until he receives his lawful permanent resident status, the employer should still be aware of what the government (i.e. the State Workforce Agency) considers the prevailing wage for the position in question. Also, the prevailing wage will have to be placed in the notice as well as the application for labor certification.
If advertising the position at the prevailing wage is acceptable to the employer, as well as actually paying this wage when required, what is the next step?
The next step is to formulate a plan to comply with the recruitment requirements. This plan involves drafting the job description (for both the labor certification application as well as the ads) and the selection of the appropriate methods of recruitment, which will necessarily include a newspaper of general circulation.
Attorneys who practice criminal law should know about the Miranda case. What about attorneys who practice labor certification law? What cases should they know about?
Among the most important are the following: Delitizer, Information Industries, Modular Container Systems, Kellogg, and Bronx.
Who wrote these decisions? The United States Supreme Court?
No, not the Supreme Court, BALCA (The Board of Alien Labor Certification). The decisions were specifically referenced in the Supplementary Information accompanying the PERM regulations. Therefore, these cases will still be relied upon for adjudicating applications submitted under PERM. Although some of the principles set forth in these cases may have been refined by the PERM regulations, the cases are still good law.
Delitizer deals with when experience gained with the sponsoring employer is sufficient to fulfill the experience requirement. As discussed above, if an employer is sponsoring an alien for a job which requires experience and this experience was acquired with the sponsoring employer, it must be demonstrated that the two positions (the one the alien has held and the one for which he is being sponsored) involve different duties. The rule under PERM is that over 50% of the duties in each position are different.
Information Industries deals with the standard of business necessity to justify “unduly restrictive” job requirements. The Department of Labor frowns on job requirements that appear to be unnecessary to perform the job. They are perceived as a keeping out qualified Americans. For example, if a bakery filed an application for labor certification on behalf of a baker and required the baker to be fluent in English, Spanish and Korean, this requirement would probably be perceived as “unduly restrictive.” In such a case, the employer would have to establish “business necessity” to justify such a requirement.
The case of Information Industries established a two pronged test to establish business necessity. First, the stated job requirements must bear a reasonable relationship to the position. Second, it must be demonstrated that the job requirements are essential to reasonable performance of the job.
Modular Container deals with “bona fide” job opportunity. In this case, the employee on whose behalf an alien labor certification was filed had a significant ownership interest in the company. This case considered the effects on a labor certification when the alien sponsored has an ownership interest in the company or has a family relationship with the employer or some other factors suggest that there is no real job offer to qualified Americans. The Board of Alien Labor Certification Appeals held that in order to properly determine whether or not a bona fide job opportunity exists, the CO should consider the “totality of the circumstances.” In other words, if the alien being sponsored is the brother of the employer, this doesn’t mean that the application will be automatically denied. But it does mean that the application will probably be scrutinized very closely.
Bronx addressed the question of when employers may appropriately reject American applicants. In this case, the employer required a Master’s Degree and five years of experience for the job of accountant. Since the requirements were found to be acceptable (i.e. not excessive), BALCA held that it was permissible for the employer to reject applicants who did not have the Master’s Degree.
Therefore, the rule is that American applicants who do not meet the stated job requirements for the job offered may be lawfully rejected as long as these requirements are not considered excessive. However, applicants whose resumes indicate that they may have a combination of education and training to perform the job duties should be interviewed rather than rejected based solely on the résumé. 
Francis Kellogg deals with alternative job requirements. Often, when the sponsored employee does not have the normal experience requirements, the employer offers to accept alternate requirements. In this case, the employer filed an application for labor certification on behalf of a live-in cook. Under requirements, he listed two years experience in the job offered or (in the alternative) two years experience in the related occupation of live-in housekeeper with cooking experience.
Just as the Department of Labor takes a dim view of job requirements that appear to exclude anyone but the alien being sponsored, the Department likewise looks unfavorably upon alternative requirements that appear to be “specifically tailored” to fit the experience of the alien being sponsored.
Therefore, Kellogg held that alternative job requirements are not acceptable unless the employer is willing to accept any suitable combination of education, training, and experience.
How can an employer find out what the Department of Labor considers to be normal educational and experience requirements?
The O*NET (Occupational Information Network) should be used for this purpose. The website is http://online.onetcenter.org/.
How has PERM been working out so far?
Reaction has been mixed. As stated above, the response time has not been always been as speedy as promised. There have been surprising audits in some cases. Cases which should have been approved immediately have been mistakenly denied. However, there have also been reports of cases approved within one week.
If someone gets his PERM application approved right away, does that mean he can go ahead and immigrate to the United States?
Absolutely not. The individual must wait until his visa number is “current.” (i.e. currently available to be processed).
For example, suppose an application for labor certification were submitted on January 1, 2006 on behalf of an accountant from England. Two months later on March 1, 2006, the application is approved. The beneficiary would still have to wait until his “priority date” (for his visa category of employment based third preference) is current before he could file his application for Adjustment of Status. The priority date in this case is the date the application for labor certification was submitted to the Department of Labor. (i.e. January 1, 2006).
At present, the government is processing residency applications based on labor certifications (for skilled workers from Europe) that were filed about five years ago. This means that even though it only took two months for his labor certification to get approved, the British accountant will still need to wait several years until he can apply for status as a lawful permanent resident.
It is hoped that Congress increases the allotment of visa numbers so that the process by which aliens may immigrate through employment is really sped up and PERM can thereby live up to its potential.
1 Interestingly, the statute enacted by Congress governing labor certification is short and essentially states as follows: Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that there are not sufficient workers who are able, willing, qualified and available. . . .to perform such skilled or unskilled labor AND the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. INA §212(a)(5)(A). The regulations, however, which are written by the Executive branch to implement this statute are voluminous and constantly changing. They are found at 22 CFR 656.
2 April 30, 2001 was the deadline of the extension of INA §245(i). If an application for an immigrant visa or labor certification was filed on or before this date, it could provide the means for an undocumented alien to immigrate to the US without departing and facing potential bars.
3 The following is the regulation for newspaper ads:
Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:
Name the employer;
Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;
Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
Not contain a wage rate lower than the prevailing wage rate;
Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. 20 C.F.R. 656.17(f)
4 The pertinent regulation states as follows:
(1)The employer must prepare a recruitment report signed by the employer or the employer's representative . . . describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the reasons the workers were rejected. . .
(2) A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers.
5 20 CFR §656.17(g)
6 This rule was set forth in a case called Matter of Delitizer Corp. of Newton, 88-INA-482 (BALCA May 9, 1990) (en banc ). In Delitizer, BALCA held that the factors to consider in determining whether jobs were sufficiently dissimilar are the following: (1) the place of the positions in the employer’s job hierarchy; (2) the requirements for the positions; (3) the job duties and responsibilities; (4) the percentage of time spent in each job duty; (5) whether the position is a new one or one in which there is a history of job requirements; and (6) the relative salaries.
7 Miranda v. Arizona 384 U.S. 436 (1966). This is the famous case that held that if a person is custody and interrogated by the police, he must be informed of his rights, including the right to remain silent. Otherwise, the statements he makes cannot be used against him.
For an excellent discussion of these cases as well as the history of Labor Certifications, see Burgess, How the PERM Labor Certification Process Evolved, David Stanton Manual on Labor Certification 1, AILA (2005-06 ed.)
8 Matter of Delitizer Corp. of Newton, 88-INA-482 (BALCA May 9, 1990) (en banc).
9 Matter of Information Industries, 88-INA-482 (BALCA Feb. 9, 1989) (en banc).
10 Matter of Modular Container Systems, 89-INA-228 (BALCA July 16, 1991) (en banc).
11 Matter of Bronx Medical & Dental Clinic, 90-INA-479 (BALCA Oct. 30, 1992) (en banc).
12 Matter of Francis Kellogg, 94-INA-456 (BALCA Feb. 8, 1998) (en banc).
The author would like to thank the following individuals for their invaluable insights: Marsha Mihok, Wade Chernick, Lorna Burgess, Josie Gonzalez, Carl Shusterman, Glenn Kawahara, Paul Medved, John Gallagher, Alan Diamante, David Paz Soldan, Matthew Millen, Victor Nieblas, and Gary Linder. (Copyright of this article is retained by the author.)