PERM Recruitment Process

By: Gilyana Dzhambulaeva

An Overview of PERM 

PERM is a permanent labor certification issued by the Department of Labor (DOL) allowing an employer based in the United States to hire a foreign worker to work permanently in the United States. In most cases (except EB-1 Petitions), the employer must obtain a certified labor certification application from the DOL before they can submit an I-140 immigrant petition to USCIS. The DOL must certify to  United States Citizenship and Immigration Services (USCIS) that there are no sufficient candidates based in the United States willing, qualified, and available to accept the job opportunity in the area of intended employment.  Additionally, the employer must prove that the foreign worker's employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

After the labor certification application is certified by DOL, it should be submitted to the appropriate USCIS Service Center with a Form I-140, Immigrant Petition for Alien Worker. The certification has a validity period of 180 days and expires if not submitted to USCIS within this period. 

PERM Labor Certification Process: 

PERM can be broken down into three major steps: 

1. Prevailing wage determination (PWD) 
2. Recruitment Stage 
3. Form 9089- PERM Application  

The Department of Labor has particular standards and regulations that govern the activities necessary to sponsor an employee. The PERM recruitment process necessitates that an employer distinguish between non-professional and professional employment.  

Usually, a bachelor’s degree is the minimal level of education for a classified professional. However, the Department of Labor may categorize an open post as a professional occupation whether or not the employer declares it. Various DOL laws govern the forms of recruitment and the ad contents. 

PERM Recruitment Advertisement Requirements: 

PERM employers must post an employment advertisement that features the following: 

1. Employer’s name 
2. Employer’s address 
3. Employer’s contact information 
4. Description of the job responsibilities and education & experience requirements 

The PERM recruitment requirements are divided into two categories: Mandatory and Additional. 

Mandatory Recruitments: 

1.  The employer must place a job order with the State Workforce Agency in an area where the described job exists. The order must run for at least 30 calendar days in a row (including weekends). Some employers will run a job order for  35 days, to ensure that they meet the 30-day guideline. 
2. Two advertisements must be published in a general circulation newspaper on two separate Sundays. If the job is in a rural location that does not have a Sunday newspaper, the employer can place the ad in a widely circulated newspaper. If the employment demands an advanced degree and particular skill set, the employer may place the advertisement under the journal or professional publication. 

Sunday Advertisements Requirements: 

The Sunday ads must have the following information: 

1. Employer’s name. 
2. Employer’s address and contact information. 
3. Detailed job duties and description. 
4. The job’s geographic location and any travel & relocation required. 

Salary information is not required. However, the employer must ensure that the advertising appropriately educates candidates about the employment opportunity. 

Posting Notice- NOJO 

Employers must also prepare a “posting notice,” which is a legal requirement. The goal of the posting notice is to notify the employer’s present employees that a labor certification is being filed. The posting notice must be signed by the employer, dated, and posted at the employer’s office for ten consecutive business days. 

Additional Recruitment Steps 

In addition to the above-mentioned mandatory recruiting, the employer must choose three of the ten other ways of recruitment. 

These extra recruitment stages are sometimes referred to as “optional.” However, the phrasing is deceptive. The employer is required by law to pick three extra ads. Because all the advertisements must have the same information as the Sunday ads, most companies just use the same text in all of their PERM ads. 

The available ten options for the employer are: 

• Job fairs 
• Employer’s website 
• Job search website other than the employer’s; 
• On-campus recruiting; 
• Trade or professional organizations/publications; 
• Private employment firms 
• Employee referral program 
• Campus placement office 
• Local and ethnic newspapers 
• Radio or TV ads.

Employers using an external advertising agency, such as Adnet, may continue to use them for c certain PERM advertising needs. However, some types of ads, including but not limited to referrals and the employment website, are typically handled internally, without the assistance of a third party.  

Requirements for Non-Professional Careers 

Likewise, for non-professional positions, the employer must file a job order with the help of the state’s workforce agency in the specific area of intended employment. Additionally, two advertisements in the Sunday Newspaper are mandatory. 

The purpose of the recruitment is to truly ‘test the labor market’ and to comply with DOL PERM recruitment requirements.  

Recruitment report 

Employers must also file a recruitment report. This should contain the following: 

• Applicant name, PERM position, SOC code, employer name’ and address 
• A list of all recruitment that has been conducted for each case 
• Document all resumes received and document the reasons they were rejected.  Valid reasons for denial include: the candidate is not authorized to work in US or does not have the required education or experience.

Sometimes DOL issues a PERM Audit. Employer’s must respond within 30 days and submit a recruitment report, proof of recruitment conducted, and attach all supporting documents proving the process was completed properly and all requirements were met.   

Supervised Recruitment  

Under special circumstances, the DOL can request a supervised recruitment. In this case, the employer must submit a draft of proposed advertisements to the Certifying Officer for approval no later than 30 days after receiving the order of supervised recruitment. The CO will review and either approve the advertisement or issue corrections/ changes to the advertisement. 

Once the advertisement is approved, the CO sends a list of publications where the advertisements must be placed. The employer must then interview all the candidates sent as a result of the said advertisement and provide a recruitment report to the DOL. The CO then reviews all the recruitment information along with the recruitment report to grant or deny the application. 

Conclusion  

PERM recruitment is an essential part of the PERM process and conducting a proper recruitment according to all DOL requirements is very important to avoid a PERM Audit or a PERM denial. Therefore, employers should rely on attorneys to make sure the PERM recruitment is done properly and on time. For case-specific questions or more information regarding the PERM recruitment process, contact the trusted Chugh, LLP immigration team.