I wrote this FAQ to explain in plain English what PERM is and how it will work. Starting March 27 2005, PERM will replace Labor Certification (Labor Cert) and Reduction in Recruitment (RIR). Under PERM, the Department of Labor will approve most cases within 45 to 60 days. The job must be advertised for two Sundays prior to applying. Once approved by DOL, you may file for you and your family's permanent residency/green card and receive employment authorization about 90 days later. The processing date for your residency depends where you reside. I will update this FAQ on PERM in the coming weeks.
What is PERM? This is the working title for Program Electronic Review Management System (PERM) created by the U.S. Department of Labor.
After being approved by PERM can I file for my future spouse? Yes, if you marry and apply for them prior to adjusting status to permanent resident.
Why is the Department of Labor switching to PERM? Their stated reason "PERM is a new process that will take full advantage of state of the art technology and the use of policy driven standards to minimize manual intervention, and to increase the speed of case processing at a reduced cost to employers and government alike." This idea debuted in the Federal Register on August 25, 2000 in the Federal Register. At that time the idea was to use scanning however, this idea has evolved into web based processing as the technology has evolved.
Can my company apply under PERM for a worker in the U.S.? If the worker is in status or they have a grandfathered petition you may apply under PERM for them. If the worker is out of status and does not have a grandfathered petition you should not apply for them.
Can you the worker apply without a sponsor under PERM? No you need a job offer to apply under PERM is to seek approval for a job by the U.S. Department of Labor.
Can you the worker apply for yourself under PERM? There is no rule that prohibits your company applying for you if you qualify under PERM.
Can you apply under PERM with a university degree? With a job offer and if you qualify for the job because of a degree, license or experience you may seek PERM approval.
Does my application for labor certification under PERM have to be identical to my previous application? Yes, the DOL defines identical as identical. This is important to keep the same priority date of previous filing.
Will the DOL give my information to ICE, immigration and customs enforcement? There is no prohibition under PERM against information sharing between the two agencies. You need to be certain you qualify prior to applying under PERM.
If PERM an amnesty? No, PERM is not an amnesty. PERM is the web based implementation for DOL labor certification processing.
What is schedule/Appendix A? This is the list of professional to assist users to determine if the job is professional or non-professional and whether additional recruitment steps apply.
Do I have to file under PERM if I already have a case filed? Backlog case centers will deal with certain previously filed cases. You should contact the DOL to make certain that your case will not be sent there as the processing time for cases at the centers will increase.
Why has the DOL switched to PERM? Online web based filing will allow for faster, more streamline document management to help decide cases faster.
When does PERM start? On March 27, 2005
Can I apply on March 27, 2005 under PERM? Yes, if you have completed your new advertising as required by PERM 30 days prior to filing.
How does PERM work? With a prevailing wage and advertising twice 30 days prior you may apply under PERM and most cases will be approved by the DOL within 45 to 60 days.
When my case is approved under PERM can I start to work? After PERM approval you may file at the same time your I-140 and I-485 package with an I-765 package to seek employment authorization. All countries are current except for India, China and the Philippines.
How long after filing under PERM can I begin to work? Once you have applied for work authorization if not approved within 90 days you may seek an appointment to receive work authorization.
Can my spouse and children get a work permit under PERM? Yes they may receive a work permit.
Can I switch from a family based petition to PERM? Yes, if you applied prior to April 30, 2001 your petition has received the right of grandfathering.
Can I switch from a prior labor certification case to PERM? Yes, if you applied prior to April 30, 2001 your petition has received the right of grandfathering.
What if my prior labor certification or family based petition was denied, abandoned or closed can I reapply under PERM? If you applied prior to April 30, 2001 you have received the right of grandfathering. To determine if you may apply you need to investigate your case prior to refilling.
How much does my employer have to pay me under PERM? You must pay the prevailing wage determined by the state workforce agency.
Can I pay my employees less than the prevailing wage under PERM? No, the DOL no longer permits paying less than 10% of the prevailing wage.
Can I use an alternative wage survey instead of the prevailing wage under PERM? Yes, as long as the wage rate survey meets the DOL guidelines.
Is reduction in recruitment, RIR gone under PERM? All cases under PERM are now RIR as you must recruit prior to applying with the DOL?
Will my case be audited under PERM? Some cases will be selected randomly and others will be audited according to the selection criteria. Those audited will have to provide documentation to support the ETA 9089 and may be subject to supervised recruitment.
Are professional team athlete applications different under PERM? No, the same procedures will be used by the DOL.
What are the new penalties under PERM? The new major penalty is the requirement of requiring supervised requirement for up to two years for problematic labor certification petitions.
Can an independent contractor apply under PERM? No, you must be a full time employee.
Can a B-1 Visa holder sponsor a worker under PERM? No, B-1's are not allowed to be PERM sponsors.
If my case has been sent to the backlog reduction center how much longer will it take my case to be decided under PERM? The DOL has indicated that the backlog cases will take 24-30 months longer.
How do I recruit under PERM? You have to place a job order with the SWA, state workforce agency and advertise at least twice on consecutive Sunday papers at least 30 days prior to filing and within 180 days of advertising.
Do I have to advertise in a professional journal under PERM? No you may now advertise in a local paper on a Sunday. If the local paper has no Sunday edition and the work is in a rural location there is an exception to the Sunday requirement.
Do I have to list the wage offer in the advertisement under PERM? No, it is no longer required but may be listed, however if listed it must be the prevailing wage or higher.
Am I required to maintain a recruitment report under PERM? Yes, PERM has not dropped this requirement. The report has to describe the recruitment steps, results, number of hires, number of U.S. worker rejections, reason for rejection, resumes and applications.
Can I mail my application under PERM? Yes, but the mailed application will be processed slower by the DOL.
Can I fax my application under PERM? No, faxed application will not be accepted by the DOL.
Will PERM help employers apply? Yes, using the secured file the employers will be able to load company information for future applications.
Can I sign my PERM application electronically? Not yet, for now a PIN/password system is in place.
How do you submit supporting documents under PERM? You do not submit it with the petition but you must have it available to be examined in case of an audit.
Will the application be approved under PERM? Yes, if you qualify because there are not sufficient U.S. workers able, willing, qualified and available. There must be no adverse effect on the wages and working conditions of U.S. workers similarly employed.
Do I still start my application with the state workforce agency under PERM? No, the sole role of the SWA is to provide the prevailing wage determination.
If PERM faster than RIR? Yes, PERM should issue approval in most cases within 45-60 days as opposed to RIR which took between 9 months to 3 years.
Has the business necessity test been eliminated under PERM? No, Program Electronic Review Management System (PERM) allows the employer to document that the job requirements bear a reasonable relationship to the job, employer's business and are essential to perform in a reasonable manner the described job duties.
Legal Disclaimer: The information contained on the above links or pages is of a general nature and may not apply to any particular set of facts or circumstances. It does not constitute legal advice or an engagement of Mario Ramos, PLLC, nor is there any warranty, guarantee, or representation, either express or implied, regarding the accuracy or reliability of the information provided or opinions.