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FAQ: PERM Labor Certification Process – Phase 2

by | Jan 27, 2023 | FAQ

Welcome back to our FAQ series about the PERM Labor Certification Process. In the last post, we covered Phase 1:

  • Developing a strong case strategy and outline
  • The very important determination of the job title and requirements
  • Employer registrations for PERM and State Workforce Agency
  • The subsequent analysis, strategy, drafting, and filing of the prevailing wage determination

Before filing the PERM Labor Certification (LC), the Department of Labor (DOL) requires employers to complete very specific advertising and recruitment steps for the job at issue. These make up Phase 2 of the PERM labor certification process. The goal of this phase is to show that no qualified and available U.S. workers can fill the specific position.

This FAQ covers Phase 2 of the PERM labor certification process, which includes:

  • Selecting advertising channels
  • Developing an advertising timeline
  • Preparing, posting, and monitoring advertising
  • Keeping detailed evidence of at least six different and required advertisings
  • Screening, consideration, and interviewing of qualified applicants
  • Lawful rejection of applicants
  • Determination of whether or not to proceed with PERM filing

What Recruitment Steps Does the DOL Require for PERM for Professional Positions? 

To recruit for PERM professional positions, employers must:

  • Place two Sunday prints ads in a newspaper of general circulation
  • Place a 30-day online job order
  • Post an internal notice of filing
  • Undertake three additional recruitment steps

What 3 Additional Recruitment Steps Must Employers Take for Professional Jobs?

Permissible additional recruitment locations/media include:

  • Job fair
  • Employer’s website
  • Job search website other than the employers
  • On-campus recruiting
  • Trade or professional organizations
  • Private employment firms
  • Employee referral program, including very identifiable incentives
  • Campus job placement office, if the job requires a degree but no experience
  • Local and ethnic newspapers, and/or
  • Radio and television advertisements

The language of these ads must meet DOL’s very specific criteria. Employers use the results of this recruitment process to show evidence that there are no willing, able, and minimally-qualified U.S. workers for the position.

What Recruitment Documentation Must the Employer Keep?

The employer must have a recruitment report describing and providing evidence of the recruitment undertaken and its results. The report will include the number of rejected U.S. workers and the lawful job-related reasons for their rejection. It also must contain evidence of all the recruitment steps, such as newspaper tear sheets, screenshots of websites, and copies of applications received in connection with the recruitment steps.

How Long Does the Employer Need to Retain the Recruitment Documentation?  

For five (5) years from the date of filing of the application.

What Requirements Do Sunday Print Ads Need to Meet?

Employers can meet the Sunday print requirements by posting two consecutive Sunday advertisements in the newspaper of general circulation. They should be posted in the area of intended employment.

The ad must list the name of the employer, the geographic area of employment, and a description of the position specific enough to apprise U.S. workers of the job opportunity. Lastly, the post should direct applicants to send resumes to the employer.

For How Long Does the 30-day Job Order Need to Run?

This Job Order is placed with the State Workforce Agency (SWA). For PERM purposes, the Job Order must run for a minimum of 30 days.

How Do I Accomplish the Notice of Filing?  

This Notice is posted internally at the worksite for ten consecutive business days. It must contain the salary for the position or a salary range. The notice should include a contact person and very specific language and format.

For Union Positions, Does the Employer Need to Provide the Notice of Filing to a Bargaining Representative?

Yes, the employer needs to give notice to the bargaining representative of the employees in the same occupational classification for which the application is being filed. In the absence of bargaining representatives, then the employer must make an Internal Job Posting.

Do I Need to Include the Wage Rate in the Advertisement?

No, the advertisement does not need to list the wage, except for in the Notice of Posting. If a wage is included, it cannot be lower than the Prevailing Wage rate.

What Happens After the Employer Places the Advertisements?

If the employer receives applications from the advertisement, they need to evaluate the applicants. Then, they employer needs to contact those who appear minimally qualified for the position AS SOON AS POSSIBLE. The employer can only disqualify applicants for lawful reasons. Also, employers need only consider “U.S. workers.”

The employer should contact applicants who appear to meet the minimum qualifications. They may possibly want to interview the applicants by phone or in person.

Employers must show good faith effort in contacting applicants. Delaying contact to potentially qualified applicants could result in the denial of the PERM application.

If employers find minimally qualified applicants willing to accept the position if offered, the PERM process should be discontinued at that time. It’s time to explore alternative options.

What are Lawful Reasons to Disqualify Applicants?

Every case is different, but below you’ll find some lawful and job-related reasons for rejecting a candidate:

  • Not having the education or work experience required
  • Not willing to relocate to fill the position
  • Not willing to accept the job position’s salary
  • Failing to attend or respond to an interview letter
  • Poor work references
  • Not being a U.S. worker
  • Losing interest in the position

Who Meets the Standards of a “Qualified U.S. Worker” for Purposes of the PERM Labor Certification Process?

The DOL defines this qualified U.S. worker as a U.S. citizen, permanent resident, or other specially authorized alien (such as asylum or refugee) who satisfies the minimum job requirements of the position. They must also be willing to take the position under the conditions and terms described in the labor certification application.

Nonimmigrants in H-1B, L-1, O-1, and many other nonimmigrant statuses are not considered qualified U.S. workers for PERM purposes.

What Happens If There are No Minimally Qualified Applicants?

Then we can proceed with the filing of the PERM application.

How Much Does the Advertisement Cost?  

They vary from a few hundred dollars to a few thousand dollars, particularly depending on the rate charged by the newspaper of general circulation (which is a required ad). A job posting in a large metropolitan area will generally cost more than a job posting in a rural locale.

Why Do We Have to Advertise If We Already Found the Employee We Want?

From the DOL perspective, the position remains open, because the chosen employee is considered working in a temporary and finite visa status, such as an H-1B, not a permanent position. Additionally, the employer is required to show that there are no U.S. workers willing, able, and qualified for the position.

How Long Does the PERM Recruitment Period Need to Last?

There is no mandatory length of time for the recruitment period. In practice, we can generally complete all recruitment activities within 45 days. After the recruitment is completed, we need to wait at least 30 more days to file the PERM application. 

If a Position Requires a Certain Level of Work Experience, Can the Potential Employee Use Experience Gained With the Petitioning Employer?

The foreign national employee can only claim experience gained while working for the petitioning employer if that experience came from a position that is not “substantially comparable” to the position involved in the LC. The DOL will consider a position “substantially comparable” if 50% or more of the duties overlap. 

For example, if a Software Engineer who spends 100% of her time developing software is promoted to Sr. Software Engineer in which she spends 20% of her time managing and 80% of her time developing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used.

However, if the proposed position is substantially different (more than 50%), the experience gained with the employer should be explored.

When Considering an Applicant – If the Job Requires Four Skills, and the Job Applicant Lacks One of Those Skills, Can the Employer Lawfully Reject That Applicant? 

It depends. Lack of certain skills may not bridge the gap to lawfully reject an otherwise qualified U.S. worker. The employer needs to explore and evaluate whether the U.S. applicant could perform the job with a reasonable amount of on-the-job training to make up for the lacking skill(s).

What is reasonable will depend on the particular employer and the job opportunity.

What Does the Marks Gray Immigration Team Do for Clients During Phase 2? 

Among other services, our team will:

  • Identify and recommend recruitment channels
  • Communicate, analyze, plan and strategize with recruitment channels on adverting; language, timeline of posting and costs
  • Plan and strategize with the employer on advertising channels and timeline
  • Place all ads and gather documentary evidence of the process
  • Guide and facilitate employer’s registration with the SWA
  • Monitor all recruitment steps and prepare evidence of same
  • Prepare recruitment summary report including recruitment activities, recruitment results, and detailed applicant analysis
  • Prepare employer guide for evaluating applicants and applicants’ chart
  • Create audit file index and prepare content

 To Download a printable version, please click here

Throughout the entire process, we are available to guide you and respond to any questions or concerns that arise. For more information about your Immigration situation or to learn how the Marks Gray Immigration team led by Giselle Carson may assist you today, please email [email protected].

Originally published October 11, 2016. Updated January 27, 2023.


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