Do We Still Need PERM Labor Certification?

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What is PERM Labor Certification?

PERM which stands for Program Electronic Review Management process is a process for applying for a U.S. based labor certification for foreign workers. The process, which was introduced in 28th March 2005, was developed by the U.S. department of labor (DOL). It aims to streamline the filing and processing of foreign employees labor certificates. Every labor certification filed after 28th March 2005 should be filled under this specification.

How The PERM Process Works

The PERM process requires an employer to come up with recruitment activities to test the job market for any willing and minimally qualified U.S. citizen who can do the job before he can file for the certification.  The employer fills the application on behalf of the alien worker. If the recruitment process does not result in any minimally qualified and willing U.S. citizen who can fill the position, then the employer can apply for the labor certification. The application process involves the employer submitting the application form ETA 9089 that confirms that:

  • No available U.S. worker is willing to fill the job position under the current terms.
  • When the foreign worker is employed, the wages and working conditions of other U.S workers will not be affected.

Under the PERM application process, the employer can submit the application for labor certification either electronically or via mail to DOL. Employers do not have to provide supporting documents during application, but they should have completed the recruitment process and have all the documents ready before the filing process. If the DOL selects a case for auditing, then the U.S. employer will have to provide all the requested documents within 30 days. Documents that can be used by the employers to prove that they have tried recruiting U.S. citizens before hiring the foreign worker include:

  • Newspaper tear sheets
  • Website printouts
  • Job orders.

The PERM process compared to prior labor certification process is different in the sense that:

  1. The application can be done online
  2. Most of the applications are adjudicated within three months
  3. The requirements of the recruitment are standardized and enhanced
  4. No supporting documents are needed during filling of the application.

When the DOL approves the application, the U.S. employer should file an immigrant petition with the U.S citizenship and immigration services (USCIS) before the expiry of the labor certification period which is usually 180 days. Most of the PERM cases take 6-10 months from start to being approved. Those who are waivered from applying for the labor certification include those whose petitions are under EB-2, EB-1, EB-4 AND EB-5 categories.

If the PERM is denied, the employer can file an appeal stating why the employer thinks the application was denied in error. The certifying officer can agree with the appeal, deny it or forward it to the Board of Alien Labor Certification Appeals (BALCA). BALCA will look into the application and the evidence and make a final decision on the case. The employer is still permitted to file a motion to reopen if the certifying officer does not accept the application after the appeal. The employer has a choice to begin a new application for the sponsored employee if the PERM application is denied.

Do We Still Need PERM Labor Certification?

The DOL structure for the employer to conduct a good faith test of the labor market is a complex process. In the real world, employers choose the best employee based on subjective and objective criteria. However, the DOPL requires that the employer choose the minimally qualified U.S. employees for the post. The labor process does not encourage the employer to hire the best and most qualified employee, and it does not also result in job creation. If a minimally qualified employee applies for the post, the labor certification certificate cannot be filled. The good faith recruitment, in this case, seems out of place, and the process meets its objective by failing to locate any qualified employees. In this, the PERM process wins by losing.

The PERM does not encourage employers to use real word recruitment standards, and the employer is forced to base his evaluation on the concept of minimal qualifications to recruit an employee who might not meet the requirements of the position. Thus, the process does not take into consideration the objective and subjective traits whose presence are the predictor of effective job performance. The labor certification process is at odds with the economic system it purports to serve. The PERM process is thus a job killer that hurts the employment prospects of the domestic workforce by preventing the U.S, employers more so startups who are the main job creators from treating the foreign workers as an asset that can be used to promote job growth and strengthen the economy.

If you are an employer trying to apply for a labor certification for a foreign employee, the PERM labor certification process can be a complicated procedure that requires one to have more than the knowledge of the process. It is always best to consult an attorney from Toppins Law Firm who can help with the process.