The New PERM Program: Summary of the Process

January 24, 2005

Posted Notice. Similar to the existing labor certification process, employers will be required to post notices of the job opportunity for ten consecutive business days. Notice must be posted between 180 and 30 days before filing. In addition to the printed posted notice, the employer must use any and all in-house media, whether electronic or print, if it normally uses such media to announce job openings.
Job Orders. Job Orders must be obtained from a SWA in all cases. Previously, job orders were only issued in limited review (traditional) labor certification applications. Now a job order must be obtained prior to filing all PERM labor certification applications. Job orders can generally be obtained on line.
Print Ads. Two print ads (as opposed to one print ad for most RIR cases) must be placed not less than 30 but not more than 180 days before filing. The two print ads must be placed on different Sundays in a newspaper of general circulation. For professional positions, the employer may substitute an ad in a professional journal for one of the Sunday ads in a newspaper of general circulation.
Additional Recruitment Requirements for Professional Jobs. A professional job is defined as a position for which a Bachelor's Degree or higher is the usual educational requirement. The PERM regulations include a list of professional occupations at Appendix A. If an occupation is listed in Appendix A, the employer must follow the recruitment mandated for "professionals." If the labor certification requires a Bachelor's Degree, we recommend that the employer follow the recruitment procedures for professionals even if the occupation is not on the published list.

In addition to the two print ads, an employer must engage in three additional recruitment activities from the following list: job fairs; employer's website; job search website other than employer's; on-campus recruiting; trade or professional organizations; private employment firms; employee referral program; posted notice at a campus placement office; local and ethnic newspapers; radio and television advertisements. A web page generated in connection with a print ad will now count as a website other than the employer's. Our office has studied this issue carefully and has created a recruitment strategy which will satisfy the regulations without being overly burdensome.

Similar to the RIR process, the employer must prepare a recruitment report that discusses the recruitment steps which were taken and the results of the recruitment program. The report must include the number of U.S. workers who were hired and the number who were rejected and must categorize the reasons why people were rejected.

A small twist in the PERM regulations involves an admonition that if an applicant lacks a particular skill that may be acquired during a reasonable period of on-the-job training, the lack of that skill should not be considered as a basis for rejecting the otherwise qualified worker. The regulations do not define what constitutes a "reasonable period."

The PERM regulations require employers to maintain the documentation which supports the attestations on the labor certification application for a period of five years. The regulations provide that labor certifications can be revoked at any time if it is determined that the approval of the labor certification was "not justified." The regulations do not provide a definition of "not justified." Immigration practitioners presume that the revocation could not take place after five years since employers are only required to maintain the documentation for that period of time. It is impossible to know how aggressive the Department of Labor will be on revocations. One would hope that the Department of Labor will not move to revoke an approved PERM labor certification application unless there has been a showing of fraud or misrepresentation.