Introduction

The Perm Labor Certification process can be described as various pieces of a puzzle being identified and carefully positioned, with the end goal of forming a full picture in the smoothest and most efficient manner possible.  Multiple steps, strategies and methodologies are implemented to complete the puzzle with all pieces properly assembled.  Although the end result is the same – certification by the U.S. Department of Labor (DOL), or a complete puzzle in this analogy, the process varies according to the puzzle.  The steps taken and the strategy used vary according to the amount of pieces, the size of the pieces, the complexity of the puzzle and the time desired or allowed to complete the puzzle.  Similarly, each PERM Labor Certification is unique to the employer’s business, the nature of the offered position duties and requirements and the circumstances of each foreign national’s background, experience and immigration situation.  This article lays out some of the issues that are common to most PERMs, including the more tricky or complex pieces of the PERM puzzle, as well as some common obstacles in composing it, to provide the smoothest path to success with the least surprises possible.

General PERM requirements

The key pieces of the PERM puzzle include the following:

  • Prepare detailed and concise summary of job duties composed of an introductory phrase with core responsibility of job, and primary duties involved
  • Prepare detailed list of minimum education, skills and experience required for successful candidate to perform duties of job without training
  • Verify foreign national has required education, experience and skills prior to joining your company or organization AND can document the employment, experience and skills, ideally via letters confirming employment directly from the prior employer(s)
  • Determine which DOL occupational classification is best match for job in terms of duties and requirements by comparing the core job duties to the DOL summary
  • Determine likely wage level that will be assigned based on DOL established mechanism
  • Assess if foreign national’s country of birth (nationality) is “current” for the professional category in which it will be classified by DOL, by verifying the U.S. Department of State (DOS) Immigrant Visa Bulletin Priority Dates
  • Prepare a Recruitment Plan and Timeline according to DOL’s recruitment requirements
  • Implement the recruitment plan which takes at least 30-60 days minimum, and 180 days maximum – the recruitment becomes outdated after 180 days and cannot be used to fulfill the DOL recruitment requirements

Once these key pieces of the puzzle are laid out, the framework is set, so completing the PERM puzzle successfully can be achieved.

Pre-Hire / Pre-PERM Prep Work

Although the PERM Labor Certification process usually does not commence until a foreign national employee has worked for your company for a couple of years, it is often an inevitable requirement in order to preserve or maintain the foreign national’s ability to live and work in the U.S. beyond a temporary period.  Thus, it is helpful to take some steps at the time of hire, or soon after, to lay the groundwork and avoid unexpected issues later.

Some useful steps to take to prepare for a future PERM sponsorship are as follows:

  • Secure a U.S. Educational Evaluation or Academic Equivalency for any of the foreign national’s foreign degrees
    • this step is helpful to form a full understanding of the education credentials and background so that your company does not require more education than the foreign national held prior to hire or in a field that is not entirely relevant to the PERM position
  • Recommend foreign nationals secure letters confirming experience from their prior employers with as much detail as possible regarding the duties performed, and skills/tools utilized during the employment
    • these letters should contain exact title(s), dates of employment and factual, objective information regarding the job which will help your company in determining if the initial assessment of minimum experience and skills requirements can be proved/documented by the foreign national
    • a Certificate of Work confirming dates/title on official company letterhead is also helpful at a  minimum, to avoid issues in the future with prior supervisors no longer working for the company, or HR not being willing/comfortable signing off on detailed duties and skills, or prior companies closing entirely
    • this step is helpful to form a full understanding of the credentials and background to make sure your company is not going to require more experience/skills than the foreign national held prior to hire

Timing and Strategy Based on Status of Foreign National

H-1B and L-1 Status Holders:

Professionals in these statuses are in the ideal immigration status to begin the PERM process because these statuses, although temporary and nonimmigrant in nature, allow for “immigrant intent” or intent to remain in the U.S. Those foreign nationals in nationalities that are backlogged due to the DOS’ priority and preference system should try to secure H-1B status, as it is the only status that allows extensions beyond the maximum once the PERM-based green card process reaches a certain stage or milestone.

TN Holders and E-1/E-2 Status Holders:

Foreign nationals who are in these status are not allowed to have immigrant intent. Although these temporary nonimmigrant statuses are not ideal to pursue the PERM-based green card process, as long as they secure several years of valid status for nationalities that are “current” (not backlogged) in the DOS visa bulletin, it is possible to conduct the PERM labor certification process timely. No international travel should occur after the PERM is certified (preferably once the PERM application for minimum/prevailing wage determination is submitted to the DOL).

F-1 Optional Practical Training (OPT):

Foreign nationals in Student status with temporary work permits/employment authorization documents (EAD) generally should avoid being sponsored for PERM, again due to the prohibition of “immigrant intent”, as well as the unpredictability of the DOS visa bulletin priority dates backlog/retrogression.  However, it is still possible to timely conduct and complete the PERM process for those nationalities that are current in the DOS visa bulletin and not likely to retrogress for the duration of the PERM.   This should be a last resort for those F-1 students with at least 18 months or more of available OPT time to allow sufficient time. As with the TN and E-1/E-2 status, no international travel should occur after the PERM is certified (preferably once the PERM application for minimum/prevailing wage determination is submitted).

Defining and Documenting the Minimum Experience/Skills

Pre-Prevailing Wage Determination

One of the initial formal/official steps that must occur prior to the employer submitting a PERM application to the DOL is submitting an application for DOL “Prevailing Wage Determination” (PWD) where the DOL classifies the PERM position in a pre-established general DOL occupational classification  (utilizing the title, summary of core duties and education, experience and skills required).  Of the strategy steps that occur prior to submission of the PWD, the most essential is defining AND documenting the minimum required skills and experience. Once the application for minimum/prevailing wage determination is submitted to the DOL, the job profile, consisting of job description and requirements, cannot be revised or adjusted. Therefore, before setting in stone the education, years of experience and specific skills as minimum requirements, it is critical to verify that the foreign national not only has, but can document, the prior experience and skills – verbatim, if possible. It is not sufficient to obtain verbal or written confirmation from the foreign national, because ultimately, if the prior employer cannot or is unwilling to provide written confirmation on letterhead, the reviewing immigration officer will not rely on the foreign national or sponsoring employer’s word/attestation – there must be independent, credible documentation of the foreign national’s experience and skills.

Although it is not permissible for the employer to tailor the job requirements to the foreign national’s credentials and qualifications, sometimes, an employer may realize that what it believed to be a minimum requirement for a job is not really a true absolute minimum requirement if the foreign national was hired to perform the job without the prior skill/experience or without being able to prove/document it.  So it is permissible to adjust/revise the requirements if the foreign national is unable to secure adequate documentary evidence.  Otherwise, there is a risk that the foreign national will be disqualified from the PERM position and the PERM will fail.

Some related strategies and steps to avoid audits, delays or requests for evidence and/or avoid inadvertently disqualifying the sponsored foreign national from the PERM include the following:

  • Assess if minimum skills/experience were secured during work experience or education – if during education, the job profile should specifically state “education or experience” in the required skills is acceptable
  • Assess if an alternate combination of education and experience is acceptable and make this alternative clear in the job profile
  • If certain skills were secured during education, a letter from the university or professor/supervisor is recommended, even if the skills/experience may be indicated or implied within transcripts or course descriptions
  • Articulate specific, quantifiable, measurable and tangible skills/experience as it is difficult, if not impossible, to prove/document or evaluate vague, broad, intangible or unquantifiable skills –  avoid using words/phrases such as “knowledge of”, “proficiency in”, “team work”, “verbal/written skills”, etc.
  • Avoid relying on foreign national’s experience gained with your company, even if it was performed in a very different position – although DOL allows foreign nationals to qualify for PERM positions using experience/skills gained with the employer sponsoring the PERM as long as the experience was in a position that involved substantially different duties over 50% of the time when compared to the PERM position duties, the process of confirming if the positions were “substantially different” requires a careful side-by-side analysis of duties first and may lead to DOL auditing the PERM for further clarification

Concurrent Recruitment vs. Regular Recruitment

Due to the increasingly longer processing times for both the PWD and the actual PERM application (both taking approximately 6 months recently), employers are more interested in conducting recruitment concurrently while the PWD application is pending with the DOL, to save a few months or processing. Usually, the DOL time-line requires that a PWD be issued prior to the recruitment being conducted – this regular recruitment time-line ensures that the occupational classification and wage level assigned by the DOL is appropriate for the PERM position before the employer commits to and invests in various postings, Ad placements and recruitment steps, some of which is very expensive.  In particular, it ensures that the employer will accept/offer the DOL’s required minimum wage to the foreign national once the entire PERM-based employment green card sponsorship is concluded and the foreign national becomes a U.S. permanent resident.  For typical positions or occupations (such as Engineers, Financial professionals, Computer professionals and other more established positions), there is usually no issue with DOL’s assignment of occupational classification and corresponding wage level.  In these cases, if timing is tight, or if the foreign national is in a nonimmigrant status that does not allow immigrant intent, such as TN or F-1 OPT, concurrent recruitment is a viable way to speed up the process.

For managerial positions or more unusual or complex positions, there may be a delay in the issuance of the PWD, or your company may not agree with the occupational classification or assigned wage level.  This unpredictability of DOS occupational classification and long processing time for PWDs, could result in initial recruitment becoming outdated and/or re-recruitment necessary. If concurrent recruitment is warranted for legal or strategic purposes, one possible solution is to place the expensive recruitment steps (such as two Sunday news Ads) later in the recruitment plan – perhaps 2-3 months after PWD application submission.  With this timing, if the PWD takes longer than anticipated or if a new PWD application is filed, then the initial recruitment steps which don’t require payment (such as internal posting, 30 day posting with the state workforce agency, website postings, etc.) can be redone without too much consequence.

Conclusion

With so many pieces to the PERM puzzle, it can be challenging to place the pieces properly in a smooth, timely and efficient manner.  However, understanding the critical pieces to the puzzle, the most complex ones and/or the pieces that present the biggest obstacles, is the key. Imagining the full picture and testing the pieces and moving them around before committing the puzzle pieces to a specific place within the puzzle is key to successful completion of the PERM puzzle.

 

Elissa N. Pinto is Of Counsel in Dickinson Wright’s Troy office where she represents local, national and international clients in all aspects of business immigration.  She has practiced business immigration law for nearly 20 years.  She speaks Portuguese fluently having a Brazilian heritage, and is proficient in Spanish and French.  Elissa can be reached at 248-433-7277 or epinto@dickinsonwright.com and you can review her bio here.