Q:           What is PERM?
A:           The Program Electronic Review Management system, or PERM, is the current process by which an employer can obtain a labor certification in order to sponsor a foreign national for a permanent position in the U.S. PERM involves setting forth the minimum requirements for the foreign national's proposed permanent position, advertising the position and evaluating any potentially qualified candidates. The results of the employer's recruitment, as well as documentation of the foreign national's qualifications, are filed with the Department of Labor on Form ETA 9089.

Q:           What is the purpose of the PERM labor certification process?
A:           The purpose of the PERM process is to test the U.S. labor market for qualified U.S. workers who could potentially fill the foreign national's proposed permanent position.

Q:           What are the mandatory PERM recruitment steps?
A:           The mandatory PERM recruitment steps include a State Workforce Agency (SWA) job order and two Sunday newspaper advertisements. Specifically, the employer must post a job order (position advertisement) with the SWA serving the area of intended employment for a minimum of 30 days. Additionally, an advertisement must appear in two editions of the Sunday newspaper of general circulation in the area of intended employment.

Q:           What are the additional PERM recruitment steps?
A:           In addition to the mandatory recruitment steps, an employer must complete three or more different recruitment steps. The additional recruitment steps include job fairs, the employer's website, a job search website, on-campus recruiting, trade or professional organizations, private employment firms, an employee referral program with incentives, campus placement offices, local and ethnic newspapers, and/or radio or television.

Q:           Must the recruitment for a professional position, including the job order, the two print advertisements and the three additional recruitment steps be different?
A:           Yes, all of the required steps must be different. None of the steps can be duplicated nor can one step be used to satisfy two requirements. However, copies of web pages generated in conjunction with the newspaper advertisements can serve as documentation of the job search website posting.

Q:           What is a posting notice and when does one need to be posted?
A:           Notice of an employer's intent to file an application for labor certification must be provided to the bargaining representative. A posting notice is used to notify workers in the occupation if no bargaining representative exists. The notice should be clearly posted in a conspicuous location for 10 consecutive business days.

Q:           For how long must the employer publish a notice of filing in the employer's in-house media?
A:           If the employer normally recruits for similar positions through in-house media, the employer must publish the notice of filing in its in-house media pursuant to its normal procedures for recruitment or for 10 consecutive business days, whichever is longer.

Q:           Can the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment process for professional occupations?
A:           No, notice of filing in the employer's in-house media cannot be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or informational notice rather than an advertisement for a job opportunity.

Q:           What are the waiting periods associated with the PERM process and are there any exceptions?
A:           The PERM regulations contain obligatory waiting periods which are intended to allow U.S. workers time to apply for the advertised position. In addition to the required advertising and posting periods, the employer must wait 30 days after the last recruitment step has taken place to file the ETA 9089 application for labor certification. Moreover, none of the recruitment steps may have taken place more than 180 days prior to the filing of the ETA 9089. The only exception to this rule is that one of the additional recruitment steps may have taken place within the 30 days prior to filing.

Q:           Can the ETA 9089 application for labor certification be filed less than 30 days after the posting notice has been removed?
A:           No, the last day of the posting must fall at least 30 days prior to filing the ETA 9089 application in order to provide sufficient time for interested persons to submit documentary evidence bearing on the application.

Q:           If an employer has multiple positions available for the same occupation in the same job classification and at the same rate of pay, can the employer post a single notice of filing for both positions?
A:           Yes, an employer can post one notice of filing for several positions so long as the single posting contains the appropriate prevailing wage information and is posted for 10 consecutive business days at least 30 days, but no more than 180 days prior to the filing of the ETA 9089 application. Additionally, the notice of filing cannot offer a wage that is less favorable than that offered to the foreign national(s).

Q:           When must advertisements in the newspaper or a professional journal be placed?
A:           Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days prior to filing the ETA 9089 application. The Sundays may be consecutive. There is no specific edition requirement for a professional journal advertisement; however, the advertisement must be placed at least 30 days, but no more than 180 days prior to filing the ETA 9089 application.

Q:           What is Schedule A and who qualifies?
A:           Schedule A is a list of occupations the Department of Labor has determined lack a sufficient number of qualified U.S. workers who are able, willing and available to fill open positions. These high-demand occupations allow employers to utilize a modified labor certification process that does not require the traditional PERM recruitment steps. Currently, Schedule A occupations include physical therapist, professional nurse and foreign nationals of exceptional ability in the performing arts, sciences or arts.

Q:           If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a traditional labor certification?
A:           Yes, the employer may file an application for a college or university teacher previously denied under Schedule A either through optional special recruitment or the basic labor certification process.

Q:           What is Special Handling and who qualifies?
A:           Special Handling is a modified labor certification process for college and university teachers. The Special Handling recruitment process is an abridged version of the traditional labor certification recruitment process. The employer is not required to show there were no minimally qualified U.S. workers available for the position, but rather that the foreign national was the most qualified candidate.

Q:           Are the recruitment provisions different for college and university teachers?
A:           Yes, employers of college and university teachers may utilize the Special Handling recruitment process which involves showing that the foreign national was selected using a "competitive recruitment and selection process." Instead of proving there are no qualified U.S. workers willing to accept the position, the employer must show that the foreign national is more qualified than each U.S. worker who applied for the job opportunity.

Q:           Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?
A:           Yes, notices of filing for college and university teachers may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided to the bargaining representative or posted at least 30 days, but no more than 180 days prior to filing the ETA 9089 application.

Q:           What is a recruitment report and when is one required?
A:           The recruitment report is essentially a summary for the Department of Labor of the employer's recruitment process. The recruitment report details the recruitment steps undertaken, the results achieved, the number of hires and the number of U.S. workers rejected, categorized by the lawful job-related reasons for such rejections. At the close of recruitment and prior to filing the ETA 9089 application, all employers must draft and sign a recruitment report.

Q:           How detailed does the recruitment report have to be with respect to the lawful, job- related reasons U.S. workers were rejected?
A:           The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied, but the Certifying Officer may request the applicants' resumes or applications, sorted by the lawful job-related reasons the workers were rejected.

Q:           Does the offered wage need to be included in the PERM advertisements?
A:           No, the offered wage does not need to be included in the advertisements. However, if a wage rate is included, it can not be lower than the prevailing wage rate. Moreover, the wage rate listed on the notice of filing and in any advertisements cannot be less favorable than the wage rate offered to the foreign national.

Q:           Must the employer obtain a prevailing wage determination before beginning recruitment?
A:           No, the employer does not need to wait until the prevailing wage determination is received to begin recruitment. However, One of the most important recruitment step referred to as the SWA Job order which takes 60  days to complete requires the prevailing wage. As such in most cases, there is no actual gain in time by doing recruitment prior to obtaining the prevailing wage.

Q:           What if the employer's name changes due to a merger, acquisition or other corporate change after recruitment has been completed, but before the ETA 9089 application is filed?
A:           The employer must conduct recruitment using its legal name at the time of the recruitment. Similarly, the ETA 9089 application must be filed using the employer's legal name at the time of submission. If there is a discrepancy between the employer's name during recruitment and the employer's name at the time the ETA 9089 application is filed, the employer should be prepared to provide evidence regarding any differences in the event of an audit.

Q:           When is an approved labor certification subject to revocation?
A:           A labor certification will be revoked if, at any time, it is found to be unjustified based on unintentional or willful conduct of the employer.

Q:           Does the Department of Labor determine the preference category in which a labor certification is classified?
A:           No, the minimum education and experience requirements for the position, as described by the employer on the ETA 9089 application, dictate the preference category in which a labor certification will be classified.

Q:           Can a Bachelor's degree plus five years of experience be the equivalent of a Master's degree and qualify for the second employment-based (EB-2) preference category?
A:           A Bachelor's degree plus five years of progressive experience can be the equivalent of a Master's degree and qualify for the EB-2 preference category. The five years of experience must include progressive levels of responsibility.

Q:           What is a priority date and why is it important?
A:           The date upon which the labor certification is filed with the Department of Labor becomes a foreign national's priority date. The priority date is important because it is used to establish a foreign national's "place in line" with regards to green card processing.

Q:           When is a priority date transferable?
A:           A priority date is transferable to a new labor certification/I-140 Immigrant Petition if the original I-140 petition has been approved. If a foreign national's original I-140 petition has been approved in the first, second or third employment-based preference category, their priority date can be transferred to a newly filed labor certification/I-140 petition in the first, second or third employment-based preference category. Additionally, the transferability of a priority date is not affected if the previous employer subsequently withdraws the original, approved I-140 petition.

Q:           What is the Visa Bulletin and why is it important?
A:           The U.S. Department of State issues a monthly Visa Bulletin that summarizes the availability of immigrant numbers during that specific month for both family-based and employment-based visas. In other words, the Visa Bulletin indicates which green card applications are currently being processed by designating whether each preference category cross-referenced with a particular country is "current," "oversubscribed," or "unavailable".

Q:           What is the significance of the cut-off dates on the Visa Bulletin?
A:           The oversubscribed categories on the Visa Bulletin will contain a cut-off date. In such categories, the USCIS will only accept green card applications (either an I-485 Application to Adjust Status or consular processing of an immigrant visa) from individuals with priority dates before the cut-off date. If the category is current (meaning immediate acceptance of green card applications) a "C" will appear and if the category is unavailable (meaning no green card applications are being accepted) a "U" will appear on the Visa Bulletin.

Q:           Are foreign degrees considered to be the equivalent of U.S. degrees?
A:           The United States Citizenship and Immigration Services (USCIS) does not consider all foreign degrees to be the equivalent of U.S. degrees. The most common method for establishing a foreign degree equivalency is through a credential evaluation. Typically, 4 years of progressive post-secondary education in the same or a related field, culminating in a single source Bachelor's degree, will be considered the equivalent of a U.S. Bachelor's degree. To hold the equivalent of a U.S. Master's degree, a foreign national generally must have completed a total of 6 years of combined undergraduate and post- graduate education, in the same or a related field, culminating in the award of a Master's degree. However, each application or petition is examined on a case-by-case basis to determine degree equivalency.