If you’re an American business looking to hire international talent, there are some general steps you should be aware of in the process of legally staffing foriegn nationals. One common method that many American enterprises utilize is the PERM Labor Certification. As the name alludes, the PERM certification is meant to be a PERManent employee at your company. It’s also a pathway for foreign nationals to become American citizens with a green card, if they wish to do so.
PERM is a fantastic program that thousands of companies and foreign workers utilize every year. Employers must take the process seriously, and note that all fiscal responsibility lies on the employer to achieve PERM certification for a candidate.
Set the prevailing wage. The first step in the PERM process is setting the salary for the role, based on prevailing wage data. This data is sourced by the Department of Labor and it is advised to utilize their guides to avoid complications later. Setting a fair wage is not only the right thing to do, it is also the law. Additionally, it is the employer’s duty to demonstrate its “ability to pay” the prevailing wage begins as soon as the PERM application is filed and continues until the green card is approved. This wage is a key part of the job description, which must also be prepared.
Recruitment and advertising. Once the wage is set and a job description is ready for the position, that role needs to be advertised and shared. For example, some companies choose to share roles in their company intranet, while others choose to post the job on their website or other digital entity. Even if the goal is to obtain international talent, a company must stop the PERM process if an U.S. candidate applies. Why is that? Well, the goal of the PERM labor certification process is to ensure that there are no U.S. workers who are able, willing, qualified, and available to perform the work to be undertaken by the foreign national employee and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. By ignoring American applicants, PERM certification would be in contradiction to its own existence. If you run into dead ends with US applicants and find yourself ready to move forward with a foreign national, proceed to labor certification.
Labor certification. Now that you have your candidate, your job description, and salary in order, its time to make it official on the government’s Application for Permanent Employer Certification, also known as Form 9089. The employer must then establish the details of the employee’s anticipated position, encompassing potential future changes to the role and the estimated time frame for green card issuance. The process is a complex and considered one, and companies need to devote adequate planning and thought to it. Another element to be aware of is in regards to company layoffs. If an employer has performed any layoffs within the last four to six months or plans to commence layoffs in the next six months, it could pose serious problems for the PERM labor certification. These are all things to be mindful of.
Green card or adjustment of status. If you’ve made it this far, you’re well on your way to adjustment of status (AOS)–or a green card. There are various factors that go into this timeline, with a large one being the country of origin of the applicant. The USCIS Visa Bulletin outlines monthly wait periods for PERM to AOS/green card, and fluctuates over time. Unfortunately, for this reason, there can be no exact answer for how long the process takes.
While this is an overview of the process, there are things that can arise along the way and delay the PERM certification. For example, issues with the prevailing wage, or a long queue of US based applicants. It is advised to enlist a PERM certification attorney to help your company navigate the complexities of the USCIS and DOL requirements.