Articles 14 - PERM labor certification process in greater detail

ARTICLES

PERM labor certification process in greater detail.

PERM (Program Electronic Review Management) is the U.S. Department of Labor's new automated program for administering the labor certification process for employer sponsored green cards. The DOL has promised faster processing times for cases submitted on-line as the PERM program was designed to encourage use of an internet based electronic filing system.

Labor certification is the process by which a company may obtain a green card for an employee if the employer cannot find any U.S. workers who are able, available, willing and qualified to take the proposed position. The employer must test the job market through a series of advertising steps outlined below. If a U.S. worker is found, the case cannot be certified. If after the process is completed no U.S. workers are found, the case should be certified and allowed to move on to the next step, which is the filing of an immigrant petition with U.S. Citizenship and Immigration Services.

Company Registration for the On-Line System

In order to use the PERM on-line system, the Company must first register. The system tracks the IP (Internet Protocol) address of the Company's registered user and will not allow the Company's outside attorney to register on its behalf.

The PERM Recruitment Period

The PERM program outlines a series of steps which must be completed before an application can be filed. One key prefiling step is the completion of the manadatory recruitment steps outlined below within 6 months of the date the labor certification application is filed with the U.S. Department of Labor (DOL). These mandatory recruitment steps must be completed at least 30 days but no more than 180 days prior to the filing of the application. This window during which the recruitment process is completed is the PERM recruitment period.

Mandatory Steps: Job Order and Print Advertisements

The employer is required to post a notice regarding the labor certification job opening with the State of California's Employment Development Department (EDD) for a period of 30 days. This EDD posting is called a Job Order. The start and end dates of the Job Order entered on the EDD's on-line application will serve as documentation of this step.

Also, the employer must place a print advertisement on two different Sundays in the newspaper of general circulation for the area of intended employment. In San Diego, this would be the Union Tribune. In San Jose, for example, this would be the San Jose Mercury News. The employer must retain a copy of the full page in which the ad appears. This means that the ad should NOT be cut out of the paper. Alternatively, the employer may submit a "tear sheet," which is an official proof of the ad as received directly from the newspaper.

The newspaper ad must contain the following information:

1. Name of the employer;
2. Fax number and/ or mailing address to which applicants can submit their resume;
3. The title of the position and a short job description if needed to clarify the nature of the proposed position;
4. The name of the city in which the job is located;
5. If applicable, the ad should also list any foreign language or travel requirements for the position.

Additional Recruitment Steps: Must Use at Least 3

The employer must also use at least 3 of the following in addition to the mandatory recruitment outlined above: job fairs, the employer's own website, a job search website such as Monster, on-campus recruitment, a trade or professional organization, a private employment firm, an employee referral program with incentives, a campus placement office, a local or ethnic newspaper, radio, or TV ads.

Only U.S. Workers Need to Be Considered for the Position Offered

Only U.S. workers need to be considered for job opening listed in the labor certification application. A U.S. worker is a citizen, green card holder, refugee, or asylee. A U.S. worker is not anyone who requires sponsorship to work in the U.S. or a person authorized to work on an employment authorization document, with the exception of a refugee or asylee. In interviewing applicants, employers must be careful not to commit citizenship discrimination. For this reason, the employer may want to confirm whether the applicant is a U.S. worker by asking the following question: "Without telling me which one, are you a U.S. citizen, lawful permanent resident, refugee or asylee"?

Reviewing Resumes

As discussed above, the first step in the process is advertising for the job and soliciting resumes from U.S. worker applicants. The resumes received pursuant to the Company's ads are reviewed by the Company's authorized representative. The law specifically notes that the resumes may NOT be screened by the sponsored employee or by the Company's outside immigration attorney.

If a given applicant clearly does not meet the minimum requirements as listed in the labor certification application filed with the U.S. Department of Labor, then no further action is required. If it appears that the applicant may meet the qualifications, then he or she must be contacted. A short phone interview is an acceptable method of contact. The Company representative must be sure to note the date and time that the applicant was contacted and note any specific reasons why the applicant is not qualified for the position, if applicable. Any applicants not reached by phone should be sent a letter via certified mail, return receipt requested (CMRRR). The DOL will not accept any other method of contact in lieu of CMRRR as sufficient proof of an employer's attempt to contact potentially qualified U.S. worker applicants. In interviewing applicants, the employer will need to confirm if the applicant is a U.S. worker, as outlined above, and if they are able, available, willing and qualified to take the proposed position.

Able refers to an applicant being mentally and physically able to take the position. Absent institutionalization or a physical disability which cannot be accommodated, as confirmed by the Company's employment lawyers, the use of this ground of refusal is often quite limited, meaning its use is rare and infrequent. Any legal questions regarding poor references may be referred to the Company's immigration attorney.

Available refers to an applicant's ability to begin working within a reasonable period of time. If they can start in two weeks, they are considered to be available. If they cannot start for 3 months, they are not available and can be excluded from consideration.

Willing refers to the applicant's desire to take the proposed job, with all of the attendant duties and at the specified salary. If they are unwilling to accept the position as offered or they are unwilling to work for the offered salary, they can be excluded from consideration.

Qualified refers to whether or not the applicant meets the objective minimum requirements listed in the labor certification application. Unqualified applicants can be excluded from consideration. The Company may not exclude a U.S. worker if the person lacks a skill which can be learned during a reasonable period of on-the-job training. For example, if the company requires a person to know MS Word but the applicant only knows WordPerfect, the applicant may not be rejected as most persons familiar with WordPerfect can obtain a working knowledge of Word within a very short period of time.

Retention of Documents

Under the current law, the employer must maintain documentation of its recruitment efforts for at least five years from the date the case is filed. This includes copies of all resumes received and any other documents related to the review process. The DOL may request these documents from the employer within the five year period pursuant to a file audit. If the employer is unable or unwilling to forward the requested documents to the DOL, the company's labor certification application will be denied and the company will be barred from using the PERM system for up to two years.

Next Steps

After the labor certification application is filed, it will be approved, denied, audited or subjected to a supervised recruitment process under the direction of the DOL. Upon the receipt of a labor certification approval, the next step is to forward the approval to U.S. Citizenship and Immigration Services along with evidence of the sponsored employee's qualifications and updated company financial information. The last and final step of the green card process involves a health and criminal background check of the employee and any dependent family members who will immigrate with the employee to the U.S. Upon the completion of this last and final step, the employee and dependent family members receive green cards, which are formally called Permanent Residence Cards.