An organization is always in search of talents to fill up their vacant job positions. Many positions that open up need skills that might be a specialization. If these skills are not found in the local talent pool of US workers, then the federal rules allow the organization to hire people who are ‘aliens’ (foreign workers or international students).
This brings us to the major visa stamping, the green card. The green card is an identity document that provides proof that a person is a permanent resident of the USA.
An employment-based (EB) green card is the most usually rolled out green card. This means an employer sponsors a foreign worker for an immigration petition. The job position, in this case, must be strictly permanent and not a temporary job position.
From EB-1 to EB-5, it has 5 categories. Out of these, EB-1, EB-2 & EB-3 come in a preference order system, the highest preference being given to EB-1 and decreases downwards.
The major processes included in a green card procedure are the PERM recruitment process, Filing I-140 form, Filing I-485 form. All these processes have some basic PERM requirements.
This article throws light on the recruitment process exclusively happening in the PERM process and to understand the PERM recruitment requirements.
PERM: A Basic Overview
The main agenda behind the PERM process is to get an insight into the job opportunities available for US workers. The government needs to know whether an employer is trying to bring in an immigrant on a job that has a skill base in the US itself. In short, the PERM process sees to it that the job opportunity being provided to a foreign worker is not on the cost of an American worker.
In this PERM Recruitment process, there are major three processes that need to be cleared before moving on to filing the I-140 form. They are:
1. Determining the prevailing wage
As per the rules, after the green card approval and employment, the employer is supposed to pay the foreign employee at least the prevailing wage. The Dept. of Labor (DOL) determines the prevailing wage. DOL takes the existing information regarding the job position from the employer.
A DOL inspector analyzes the job specification, its duties, the concerned skills needed, job location, and then assigns an appropriate salary to the position. It takes DOL about 2 months for issuing the prevailing wage determination
2. PERM recruitment
The second step to the PERM process is the PERM recruitment process for US workers for the considered job position. This gives an insight into whether there is a need for a foreign worker to take up the job.
The employer needs to advertise the job opening on portals. This is to be done in the state where the job location is so that qualified US citizens can apply for the position.
3. Filing ETA 9089 form
The final step to the PERM recruitment process is filing ETA 9089. This form is for permanent employment certification. It can be applied from the DOL website.
The ETA 9089 form consists of
- Basic information about the job role, location, prevalent wage, any requirements, etc.
- A detailed recruitment process and all the needed documents for the position as per PERM recruitment requirements.
- The information which supports the foreign national for the role.
It generally takes about 4 to 6 months. There is a chance that the application can be audited. This can extend the process. It is better to have an attorney to guide you through the process as it decreases the chances of unnecessary side-tracking.
Employer Requirements for PERM Recruitment Process
Certain mandatory things are required to be done by the employer as a part of PERM requirements. This includes proper profiling of the job description to DOL, providing all documents needed for supporting the job position, etc. But one of the major PERM requirements is advertising the job.
In the PERM recruitment step, the employer is supposed to advertise the job position and later on hand over the proof of advertisements which have been done as per the PERM requirement and the results of the same.
There are certain advertisements which are mandatory to be done besides some additional ones. They include
- Placing a job offer advertisement with the State Workforce Agency.
- Placing 2 advertisements in a renowned newspaper’s Sunday edition in the job location area.
This advertisement must contain the following information:
- Name of the Company
- Details regarding where to send the resumes.
- A basic understanding of the job position to provide the applicant’s an overview
- Other information such as the job location and need to travel, if any.
- Putting up the Job offer on the organization’s premises for 10 consecutive business days.
This in house job posting should contain the following information:
- Name of the company and its location.
- Brief Job profile description
- Information regarding salary and compensations provided.
- Contact information and proper information regarding where to send the resume
The employer must maintain the responses to this posting as well as document all the applications and resumes received in the last 5 years. This is a precautionary step, in case of an audit.
- Out of the below-given additional methods, the employer must use a minimum of 3 methods of advertising the job position
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- On-campus recruiting
- Trade or professional organizations/publications
- Private employment firms
- Employee referral programs with incentives
- Campus placement offices (This is for jobs which need no experience, though the regulations don’t mention anything on this)
- Local and ethnic newspapers
- Radio and television advertisements.
The advertisements used must contain language and format as provided by DOL. In case anything is not as per this mandate, DOL can withdraw or deny the PERM application.
[ALSO CHECK OUT THESE: PERM FAQs ]
The time limit for certain maneuvers:
Some of the processes that come from the employer must complete within time to clear the PERM process are
- The job order should have run for 30 consecutive calendar days.
- The posting must have run for 10 consecutive business days (exclusive of weekends except for firms which remain open on weekends too e.g. hospital.)
- ETA 9089 must be submitted only after the job posting or order has expired for at least 30 days whichever is latest.
- ETA 9089 should be filed within 180 days after the circulation of 3 mandatory advertisements.
- One of the additional ads can be posted up during the 30 day waiting period.
Documentation:
All the proofs of advertisements and responses for the last 5 years should be properly documented. This also includes screenshots from the state workforce agency website, the posting notice, and the remaining ones.
Wrapping up
One of the major time-consuming processes is processing the ETA 9089 form. During this step of the PERM process, there is a chance of auditing to happen. If it does happen, the overall process further extends beyond the normal processing time. To minimize the risk of audit, the employer must maintain all documentation and complete the preceding processes as per the format given by DOL. It is highly advisable to have an attorney guiding through the PERM process.
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