Step 1: Determine the Duties and Minimum Requirements for the Position

The first step in the process is to determine the job description. An accurate job description is key to the PERM process. The job description needs to accurately reflect the actual duties and minimum requirements for the position. While most employers write job descriptions to include the requirements for an ideal candidate, it is important to understand that a PERM job description should only include the minimum requirements to do the job in a reasonable manner.  It cannot be written in a way that unduly limits the number of qualified applicants. The employee must be able to demonstrate he/she/they meet the minimum job requirements at the time of accepting the offer. The job description should include the following:

• A job title that accurately reflects the nature of the position.

• A list of the position’s required duties and responsibilities. It is important that the duties and responsibilities accurately reflect the position you are hiring for. A PERM job description is for the position the employee will hold in the future when he/she/they receive their green card. It can take years before the employee actually receives their green card through the PERM process, so it is important for you to consider what job the employee will hold in the future. Changes in the job duties, minimum requirements, or location can cause you to have to start the process from scratch. If the employee is likely to be promoted in the near future, you should make sure the PERM job description reflects the duties and requirements for the position the employee is being promoted to.

• List the minimum educational and experience requirements for the position. You must be specific about the degree, license(s), and/or certification(s) required, the number of years of experience needed, and any other relevant skills or knowledge required for the position. For example, if an architect is required to be licensed to practice as such, this license needs to be included in the minimum requirements. 

• Identify the required objective skills and abilities specific and relevant to the job duties. Examples of objective skills include prior knowledge and skills gained from previous employment as well as knowledge of technology, software, technical matters, laws, and methodologies that are the minimum requirements for the position.

• Indicate if travel is required for the position including the frequency, location, and duration of travel.

Step 2: Request a Prevailing Wage Determination (PWD) from the Department of Labor (DOL)

The second step in the process is to file an online request for a prevailing wage determination with the DOL. The DOL will determine the prevailing wage for the position based upon the geographic location where the employee will work and the job duties, minimum requirements, and other details of the position. Where the wage for the position is already set by a collective bargaining agreement, the employer will submit proof of this to the DOL.

The DOL’s prevailing wage determination sets the minimum wage that the company must be willing to pay the employee. This salary only needs to be paid once the employee becomes a lawful permanent resident (i.e. green card holder). It is currently taking the DOL approximately 6 to 8 months to issue a prevailing wage determination.

Step 3: Conduct Recruitment

The third step in the process is to conduct recruitment for the position. You must advertise the position to test the labor market. There are very specific advertising criteria that must be adhered to depending upon the level of education required for the position. The following advertising must be conducted regardless of the level of education required for the position:

• Place a job order with the State Wage Agency in the area of intended employment for a period of 30 days;
• Place 2 print advertisements on 2 different Sundays in a paper of general circulation in the area of intended employment; and
• Post the Notice of Filing in a location within the place of employment such as a break room.

When the position to be filled is considered a professional position, the company must also undertake at least 3 of the following additional recruitment activities:

• Participate in a job fair;
• Post the position on your company’s website;
• Post the position on a job search website other than your company’s website;
• Conduct on-campus recruiting;
• Advertise the job in trade or professional organizations/publications;
• Use private employment firms;
• Use an employee referral programs with incentives;
• Place the job with campus placement offices;
• Place advertisements in local and ethnic newspapers; or
• Place radio and television advertisements.

This step takes a minimum of 2 months – about 1 month is spent actively advertising the position whereas the second month is spent fulfilling the required 30-day “quiet period.”

During the recruitment period, the employer must review all of the resumes received for the position. If the employer receives a resume that indicates a U.S. worker is qualified for the position, this candidate must be contacted for an interview. The employer should keep detailed records of all resumes received, attempts to schedule interviews, interviews conducted, and reasons for rejecting candidates for the position.

Step 4: Submit the ETA Form 9089 (i.e. the PERM Application) to DOL

If the recruitment period closes with no able, willing, and qualified U.S. workers applying for the position, the next step is to prepare and file the ETA Form 9089, Application for Permanent Employment Certification (ETA Form 9089) with DOL. The ETA Form 9089 requires information about the employer, recruitment steps undertaken, information about beneficiary’s education and prior work experience, and information about the position such as title, duties, and requirements.

Processing times are currently about 12 months, but could take significantly longer if the DOL  audits the case. The DOL audits a certain percentage of the ETA Form 9089 applications it receives; some audits are random while others are targeted for a particular reason such as a foreign language requirement or the beneficiary’s current status in the U.S. Since an audit is a  possibility, every PERM recruitment effort should be conducted as if there will be an audit. 

Step 5: File the  Form I-140, Immigrant Petition for Alien Worker (form I-140) with U.S. Citizenship and Immigration Services (USCIS)

Once the ETA Form 9089 is certified, the next step is to file a Form I-140 with USCIS. At this stage, you are asking USCIS to classify the beneficiary as an immigrant worker and issue him/her/them an immigrant visa. The company must demonstrate that it has the ability to pay the employee the prevailing wage or higher. The employee must demonstrate that he/she/they meet all of the qualifications for the job. You must also submit the certified ETA Form 9089 with the Form I-140. This ETA Form 9089 is only valid for 180 days so it is important to file as quickly as possible. It is currently taking USCIS about 7 to 9 months to process a Form I-140. 

USCIS offers a premium processing service that reduces the initial processing time to 15 calendar days for an additional fee. If you select premium processing, you will receive a decision or request for additional evidence within 15 days. USCIS will issue a final decision within 15 calendar days of receiving your response to the request for additional evidence.

Step 6: Wait for Priority Date to Become Current

The priority date is the date the ETA Form 9089 was accepted for processing by the DOL. An immigrant visa number may not be immediately available to the beneficiary depending upon the green card category (i.e. EB-2 or EB-3) and his/her/their country of chargeability. You can check current visa availability by reviewing the current Visa Bulletin, which can be found at  https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html, or the Adjustment of Status Filing Charts from the Visa Bulletin, which can be found at https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin. 

If the priority date is current when the  ETA Form 9089 is certified, the beneficiary may move to the next step immediately and file the Form I-485, Application to Register Permanent Residence or Adjust Status (Form I-485) concurrently with the employer’s Form I-140.

Step 7: File the Form I-485 with USCIS

The Form I-485 is the green card application. It is filed by the employee named in Form I-140 and by his/her/their derivative family members (spouse and unmarried children under 21 years of age). The Form I-485 can be filed concurrently with the Form I-140, while the Form I-140 is pending, or after the Form I-140 is approved depending upon whether the priority date is current per the Adjustment of Status Filing Charts from the Visa Bulletin, which can be found at https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/adjustment-of-status-filing-charts-from-the-visa-bulletin. 

The adjustment of status application focuses on the employee’s (and their family members) personal eligibility to receive green card (e.g. criminal history, previous immigration violations, unlawful presence, or other grounds of inadmissibility). As a part of adjustment of status application process, the employee can request employment authorization and advance parole that can be used for employment and for reentry after overseas travel while the Form I-485 is pending. The employment authorization card usually arrives 3 to 6 months after filing whereas the advance parole document is currently taking up to 12 months to arrive. Once the employee has received his/her/their employment authorization card, they no longer need their H-1B or other nonimmigrant employment-based status, though it is encouraged that the employee maintain such status until the green card is approved.

Step 8: Attend a Biometrics Appointment

The employee will likely receive a biometrics appointment notice about 4 to 6 weeks after filing the Form I-485 with USCIS. This appointment will be at the USCIS Application Support Center closest to their place of residence. The employee will submit biographic information as well as have their fingerprints and photograph captured. 

Step 9: Prepare for and Attend Interview with USCIS officer

Approximately 15 months after filing the Form I-485 with USCIS, your employee will receive an approval, a request for additional evidence, or an interview notice. If the Form I-485 is approved, the actual lawful permanent resident card (i.e. green card) will be issued in 2 to 4 weeks. If a request for additional evidence is received, the employee must submit all requested documents in the timeframe provided.

If the employee is scheduled for an interview, the USCIS officer will review their green card application and all other immigration files to make sure he/she/they is eligible for a green card. At the time of the interview, the employee will need to confirm that a job offer is still available for them by submitting Form I-485 Supplement J, produce original or certified copies of civil documents (i.e. birth certificate, marriage certificate, divorce decree(s), passports, etc.) as well as documents related to their immigration status in the U.S. (i.e. H-1B approval notice(s), visa stamp(s), SEVIS documents, employment authorization documents, etc.). If the employee is scheduled for an interview with USCIS, they should meet with an attorney to prepare them and/or accompany them to the interview, if necessary.

Do you Need Assistance with the PERM Process?

The PERM process can be difficult to navigate. An experienced immigration lawyer can help employers to successfully navigate the PERM process to hire foreign nationals to fill important roles in their company.

The skilled team at Cohen, Tucker + Ades law firm has been helping immigrants live, work, and thrive in the United States for over 40 years. We provide corporate solutions for companies seeking to fill valuable roles with the best and brightest minds in their industries worldwide. Contact us for a consultation if you need assistance with a PERM case.

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