Protection of American workers is a recurrent theme throughout U.S. immigration laws. It should come as no surprise then that the process whereby a foreign national gains the right to permanently remain in the U.S. to live and work carries with it numerous hurdles with the overall goal that an employer prove that there are no "able, willing, qualified and available" American workers to perform the job duties for which the foreign national is being sponsored. Furthermore, the hiring of the foreign national must not adversely affect the working conditions of U.S. workers.
For most foreign national employees who are sponsored for permanent residency by their employers, obtaining labor certification from the U.S. Department of Labor ("DOL"), is the first step in this process. Note that this step is not required for the EB-1 classification or for National Interest Waiver cases. In general, the labor certification process requires that the employer demonstrate to the DOL that there is an unavailability of able, willing and qualified U.S. workers to fill the position for which the employee is being sponsored.
Overview of the PERM Program
Since March 28, 2005, the DOL processes labor certifications through the Permanent Electronic Review Management System ("PERM"), where applications for labor certification are submitted on Form ETA 9089. Employers may no longer submit applications under the traditional or Reduction in Recruitment ("RIR") programs; PERM is the only option for employer seeking labor certification. PERM in many senses is a hybrid of the traditional and RIR programs, incorporating key elements of both. Like RIR, PERM recruitment is normally conducted by the employer prior to filing the labor certification. What distinguishes PERM from traditional and RIR is the means of adjudication: most PERM filings are reviewed only by a computer; only those audited by the DOL will be scrutinized by a human being.
Prior to submitting the PERM form, the employer is required to conduct a process of recruitment over the course of two to six months and must comply with certain notice and wage requirements. By following the required recruitment steps, including posting of the job offer and advertising the job in two Sunday newspaper editions, the employer is demonstrating that it no able, qualified and willing U.S. workers were available for the position.
PERM applications are filed either electronically through the Internet or by regular mail. The applications are then processed at a National Processing Centers, located in Atlanta. Rather than have each application reviewed and adjudicated by a government employee, the PERM program is a computer-based system that relies on the employer's attestations and an audit mechanism to ensure compliance. After completing the recruitment and internal notice requirements, employers file the application making several attestations regarding their inability to find qualified, willing and able U.S. workers. The employer must also attest that it will offer at least 100% of the prevailing wage rate, as determined by the Department of Labor, for the position being certified.
The DOL computer system then analyzes the submitted PERM application, and either refers it to government officials for audit, or approves the application. When the PERM program began in 2005, the DOL estimated that it would take approximately 45-60 days to adjudicate a labor certification application under the program. The DOL has generally been successful in keeping within this timeframe, although adjudication may take longer if the DOL issues an audit on the application.
If the submitted PERM Form ETA 9089 is certified, the employer may proceed with the next step in the permanent residency sponsorship process. Although PERM processing usually takes longer than National Interest Waiver, and Outstanding Researcher cases, it often has a higher likelihood of success and requires much less work on the part of the beneficiary employee.
Brief History of Traditional Recruitment and Reduction in Recruitment
Prior to the PERM program, employers submitted applications for labor certification under one of two programs: 1) the "traditional," or "directed recruitment" program, and 2) the Reduction in Recruitment ("RIR") program. Under both these programs, employers filed applications directly with the State Workforce Agency. Under the traditional recruitment procedures, the SWA would review the submitted application and direct the employer in the recruitment procedures. If the SWA was satisfied by the reported recruitment results from the employer, it would then transmit the application to the DOL regional certifying officer for further review and certification.
The RIR procedures were conceived as a way to "fast track" employers through the labor certification process by allowing employers to conduct recruitment for positions prior to filing the labor certification application with the SWA. Applications received expedited processing under the assumption that employers had already conducted extensive recruitment efforts in the immediate six months prior to filing the application.
Even with the RIR program, the DOL experienced a backlog of pending applications. In September and October 2004, the DOL established two backlog elimination centers, in Dallas and Philadelphia to process applications filed under both the traditional recruitment and RIR processes. The DOL reported in October 2007 that it has cleared the traditional and RIR backlog, and it proceeded to close the Backlog Elimination Centers in Dallas and Philadelphia.