Below is a summary of the PERM program, which is the first step in employment based green card applications. Please check back soon for I-140 and I-485 stages as well as applications that do not require labor certification, including National Interest Waiver and Extraordinary Ability applications.
Program Electronic Review Management (“PERM”) is the first step in the process for organizations wishing to sponsor their employees for a Green Card. The Green Card process for employees in the following categories must be initiated through PERM:
- Professionals with an Advanced Degree or Exceptional Abilities qualify for PERM under the EB-2 category;
- Professionals with Bachelor’s degrees; skilled workers with two or more years of experience; and unskilled workers qualify for PERM under the EB-3 category.
Please note that the prospective applicant may be ineligible for a PERM application if they have an ownership interest in the organization or if there are familial relationships between the applicant, stockholders, corporate officers, incorporators, or partners. Please contact our office for further information regarding ownership interest and familial relationships.
The PERM application will put forth in detail the duties of the position, the educational requirements, the experience requirements, special requirements / skills that are necessary for the completion of the position’s duties, and the qualifications of the individual on behalf of which the application is being filed. The requirements of the position must be the normal set of requirements that would normally be set forth and can not be specifically tailored to the individual qualifications of the prospective applicant. The exception to this rule is the organization’s ability to document the business necessity behind the specific skill set requirement. Please note that the position in which the employee is being sponsored for the Green Card through the PERM application must remain the same through the validity of the Green Card process. This process can take between 1.5 – 2 years up to over 10 years depending on various factors.
The PERM process entails a very strict, comprehensive recruitment process to prevent the discrimination of eligible, willing and able U.S. workers from being considered for the position. Additionally, the organization must also attest under penalty of perjury that through the filing of a PERM application, similarly positioned employees in the organization will not be discriminated against.
Prior to the initiation of the recruitment process, the sponsoring employer must obtain a prevailing wage determination setting forth the minimum wage which must be paid to the individual upon acquisition of their Green Card at the end of the process. The employer therefore, must pay at least this wage to the employee when they receive their Green Card.
The recruitment process must include the following steps:
- Internal posting notice;
- In-house media (if normally implemented by the employer for recruiting purposes);
- Job order;
- 2 Sunday advertisements in newspaper of general circulation in the area of intended employment;
Three additional recruitment steps are required from the following list for professional positions:
- Job fair;
- Employer’s website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firms;
- Employee referral program with incentives;
- Campus placement offices;
- Local and ethnic newspapers;
- Radio and television advertisements
The employer is required to retain documentation of all recruitment efforts and is required to retain all resumes received in response to this recruitment campaign. Additionally, the employer is also required to prepare a comprehensive recruitment report detailing the various recruitment steps undertaken, in addition to the evaluations of all applicants.
The recruitment efforts must be conducted within 180 days before filing the PERM application. However, there must be a 30 day “silent period” upon completion of the recruitment efforts before the PERM application is filed in order to provide prospective applicants with the time to apply for the position.
All expenses incurred during the PERM process, including recruitment efforts, must be covered by the sponsoring organization and can not be reimbursed by the employee.
Please note that the PERM application can not be filed if there has been a layoff in the area of intended employment or related areas within the past 6 months prior to the filing of the PERM application.
Upon approval of the PERM application by the Department of Labor, the employer may move ahead by filing the I-140, Immigrant Petition for an Alien Worker.