- General Overview of the PERM Process and Employer/Petitioner Obligations
For the EB-2 and EB-3 categories, filing ETA 9089 under PERM with Department of Labor is the very first step of the green card process as explained in the overview section. This section will provide you with a brief overview of the PERM process, time lines and employer obligations throughout the process. Please note all the time lines given are ONLY approximations the actual time lines may vary. Please note it is extremely important for both employer and the employee to remain available and approachable to the Attorney throughout the PERM process until its final adjudication.
1. Job Title and Qualifications:
The most important step in connection with PERM is the selection of job title and the qualifications required for the job. Our office wil equire detailed information and supporting documentation from the beneficiary regarding his credentials. The detailed information from the candidate coupled with the informal job description from the employer will enable us to recommend suitable job titles and required qualifications for the same. Unless a job title and the related qualifications of the candidate are finalized the PERM process cannot move forward. Ou office will expect both the employer and the employee to provide us with requested information in a timely fashion.
2. Filing Prevailing Wage Determination (PWD):
After the job title and qualifications are finalized, we will proceed with filing PWD request with the National Office of wage determinations in Washington DC. The PWD, once requested, may take 6-8 weeks to come around. When the DOL gives wage determination they either keep the suggested occupational code as it is, or sometimes suggest a different code than suggested by the employer. If that happens, a re-determination can be requested. If, however, the previous determination is upheld, the employer will be contacted and any potential issues associated with such determination or their impact on the case will be discussed.
The PWD has a validity period which expires within a limited time. If the PWD expires before the actual PERM is filed, we can still file the PERM as long as the prevailing wage was valid at the beginning of recruitment.
The employer must understand that once the PERM is filed the employer is required to maintain its financial ability to establish that the company is financially able to pay the proffered wage to the employee. The financial ability of the employer must be maintained from the date of filing PERM all the way to the time the employee files the green card application. This time period may be spread over years. The best evidence of financial ability is the annual tax returns of the employer company where the net profit must not be any less than the prevailing wage offered to the employee in connection with PERM and as determined by the national office of wage determination.
3. Recruitment Efforts:
Our office will coordinate the recruitment for the employer. Our office will prepare all the ads in accordance with the regulations and run them for the time period required by regulations for various ads. All the ads/postings will be prepared in accordance with the DOL regulations. The employer will be billed and shall pay the cost of ads. Law requires that at the time of filing the PERM the ads should not be older than 180 days.
As such it is extremely important to strategize the timing of all steps in connection with the PERM application. Our office shall not bear any responsibility if, due to inaction or delay of the employer, the ads expire and need to be re printed/posted prior to the filing of actual PERM. Additional charges may be incurred if our office has to redo the recruitment.
Please note there are certain advertisements which are mandatory and remaining can be selected as per employer’s choice from among the approved list of DOL for advertising options. Our office will be happy to recommend which options are best suitable for the employer’s needs.
The employer will receive applications/resumes from applicants in response to the recruitment efforts. If the employer rejects any applications, the employer must note the reasons of such rejection on the application. Similarly if there is a candidate who meets all the qualifications of the job, the employer must contact them and interview them. The employer must document any such contact and interview results. If the employer finds a U.S worker who meets the required qualifications and is willing to work on the offered prevailing wage, the employer must offer the job to such U.S. worker. All this must be documented and record should be kept in the recruitment file.
Recruitment process, once started, can generally be completed in 6-8 weeks.
4. Maintaining Recruitment File:
The employer is required to retain all documents in connection with recruitment. These documents include all the ads printed/posted as part of recruitment as well as all applications/resumes received in response to each recruitment step i.e. ads. The employer is required to maintain such file and keep it at the work premises for a period of 5 years.
5. 30 Day Gap And Registration with DOL
The employer is required to give a 30 day gap after the last day of the last ad and before the filing of the PERM application. This 30 days gap is meant to enable US workers to apply for the advertised position and be considered for the job offer upon meeting such qualifications.
During this 30 day gap, our office will also send you step by step instructions to get registered with the DOL website.
6. Preparing Recruitment Report:
Once the recruitment and the subsequent 30 day gap is over the employer is required to prepare a recruitment report. Our office will provide you with a sample report/format to follow.
7. Filing PERM Application:
Once the 30 days gap is over and the recruitment report is prepared, the ETA 9089 will be filed. Due to its meticulous nature, it may take 3-5 days to complete the online application. It is imperative that both employer and alien remain available to the attorney during the completion of the PERM. The attorney may be contacting the employer or employee while preparing the PERM to get additional information which may appear relevant at the time of actual filing.
Once submitted online the PERM may take 3 to 12 months in getting certified unless there is an Audit which may delay the certification further.
8. Audit Notification:
DOL may pick certain cases randomly for Audit after the PERM is filed. If an audit is issued in your case there will be additional Attorney Fee charged to prepare a response for DOL.
Audit notification can be issued any time while the case is pending. Once issued, the notification will list all the additional evidence which the DOL requires to process the case. The audit notification will specify a time period within which the Audit response needs to be submitted. Generally the employer will receive the audit notice via email and must notify the attorney immediately upon receipt.
It is therefore very important that the employer must check their emails at least once a day till the time PERM is adjudicated. We also recommend that the employer keep checking their spam folder just to ensure that no important email from the DOL is filtered out.
In case of Audit it is extremely important that the employer provides the Attorney with all the requested documents at least 10-14 days before the date on which the response must be received by the DOL. If the employer fails to provide the requested documents to the attorney in a timely fashion and instead provides the documents at the last minute, additional fee may be charged.
Please note, this letter ONLY provides a general overview of the requirements and procedures. Throughout this process and after, you are welcome to contact us with any specific issues that you may have.
For additional questions and information please email.