FAKHOURY LAW GROUP
GLOBAL BUSINESS IMMIGRATION
What is PERM?
• Program Electronic Review Management
• The USDOL’s new electronic Application for
Permanent Employment Certification process
• Design and purpose is to test the US market for
any willing, able, capable and available US
workers for the job opening before certifying to
the DHS that it is permissible to issue or be eligible
for an immigrant visa for a foreign national
What is required under PERM?
• All recruitment must take place between 30 and
180 days before filing
• Mandatory prevailing wage determination (PWD)
from the State Workforce Agency (SWA). The
employer must file or begin recruitment within the
validity period of the PWD.
• Two Sunday print advertisements
• Placement of a 30 day job order with the SWA
• Must be as “Real World” or in harmony with
company’s “Non Perm” requirement
• One big difference – “minimally qualified” and not
• Three additional recruitment steps must be taken
from the following list…
Additional Recruitment Steps
• Job fairs
• Employer’s web site
• Other job search web
• On campus recruiting
• Private employment
• Referral incentive
• Campus placement
• Local/ethnic papers
• Radio/TV ads
Content of Print Advertisements
• Employer’s name
• Physical address or P.O. Box
• Indication of geographic area to apprise workers
of travel requirements
• Job description sufficient to apprise workers of the
• Ad need not be lengthy or detailed
• No need to state salary or benefits
• Must describe recruitment performed
• Results must include number of hires, number of
U.S. workers rejected, categorized by reason for
• Lack of experience is NOT considered a lawful job
related reason for rejection if applicant is capable
of acquiring the skills during a reasonable period
of on-the-job training.
• All resumes must be saved for 5 years.
• The recruitment report MUST be prepared prior to
filing the PERM Application
• The recruitment report must be prepared by the
individual or individuals who normally handle “non
Completing form 9089
• Actual MINIMUM requirements must be stated,
NOT the ideal requirements or “Most Qualified”
• May only consider the training and experience the
alien possessed at the time of hire
• ANY question left blank either intentional or
unintentional is an AUTOMATIC denial of the
Application for Permanent Employment
What is EB-2 and EB-3?
• Employment Based preference categories 2 and 3.
• When filing the I-140 Petition it must be indicated under
which preference category you are filing. The preference
category is based upon the minimum educational
requirements as stated in the Application.
• To qualify for an EB-2 filing the employer must indicate on
the Application that the minimum requirement is a Master
degree or the equivalent. A four year Bachelor degree
followed by five years of progressive experience is
equivalent to a Master’s degree
• Must justify and must be consistent with company
• Current Priority Date for EB-2 – 01 January 2003
What is EB-2 and EB-3
• To qualify for an EB-3 filing the employer must
indicate on the Application that the minimum
requirement is a Bachelor degree or two years of
experience and no formal degree
• EB -3 priority date 22 April 2001
Is there an advantage in filing an EB-2 over
• Possibly. The EB-2 or EB-3 category has no effect
on the processing of the Application. However, it
can affect when the I-485 Adjustment of Status
petition can be filed.
• Difference in waiting to be eligible for filing an
Adjustment of Status is about 2.5 to 3 years
Where is the application filed?
• The Perm Application is filed in one of two PERM
• Atlanta, Georgia
• Chicago, Illinois
• As to which center your Application will be filed in
depends on the state that your employers
principle place of business is located.
What does the USDOL do once they receive
• After the Application is received the automated
system will either approve, deny or flag the
Application for an audit.
• If an audit letter is issued, the USDOL may request
to see the resumes, the recruitment summary
report, the alien’s documents or raise questions as
to the recruitment process and reasons for
rejection of some or all the U.S. workers. They
could also raise a plethora of other issues as well.
What happens with an Audit?
• After the audit letter is issued the employer has 30
days in which to respond, failure to respond is an
• Once the response is received the USDOL may
certify, deny or require supervised recruitment for
up to two years.
• Must take all precautions to avoid an intrusive
audit that could lead to Supervised Recruitment.
What if the application is denied?
• The employer may elect to file a new application.
Under PERM there is no longer a six month waiting
period to refile.
• The employer may elect to file a Motion for
Reconsideration within 30 days, however, NO new
evidence may be submitted at that point.
• The employer can also file a BALCA appeal, but a
new application may not be filed while an appeal
Validity of the Labor Certification
• An approved labor certification is valid
indefinitely, unless invalidated by a consular officer
or the DHS because of fraud or a material
What about Revocation?
• Under PERM, the certifying officer, in consultation
with the DOL national office, may revoke an
approved labor certification if they find the
certification “not justified.”
• The rule does not state when this revocation can
take place. We can presume that a revocation
would not take place more then five years after
certification, since the employer would then be at
liberty to dispose of documentation. But this is only
a presumption, the rule itself does not so state.
• Open liability for employer and/or attorney if
revocation takes place.
Sources of Complainants
• Disgruntled employee
• Competitor in market
• US Worker Advocacy Groups (American IT workers
• Economic downturn
Strategy – Going Forward
• Commence PERM while candidates are still in
• Critical and cost effective retention tool
• A successful process can be a great recruitment
• Must approach conservatively as supervised
recruitment will be very costly and will tie up
corporate time and resources
• Open liability if DOL revokes based on a short fall
in the recruitment/testing of the US job market