PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. Labor certification is the determination by the Department of Labor (DOL) that there are no U.S. workers able, willing, qualified, and available for the position for which a labor certification is being sought, and that the employment of the foreign national will not adversely impact the wages and working conditions of U.S. workers. Please refer to the following for some detail information.

Question 1: Can my offered wage be lower than prevailing wage?

The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.

Question 2: Will survey be acceptable in the prevailing wage request?

Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.

Question 3: What's the prevailing wage validity period?

The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.

Question 4: Can the alien employee have the access to Permanent Online System? Can an attorney, agent or law firm register to use the Permanent Online System?

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

Question 5: How do my employers file the PERM application?

Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.

Question 6: How do my employers refile an application?

An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.

Question 7: When is PERM effective and must the employer wait until the effective date to begin recruitment?

PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date. If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.

Question 8: Once my employer requests the application be withdrawn, how soon can my employer file a new application for me again?

After requesting a withdrawal, an employer may not file a new ETA Form 9089 for the same alien beneficiary until one of the following occurs:

(A) Employer sees, using the online PERM system, that the status of the original case changes from "In Process" to "Withdrawn," or

(B) Employer receives confirmation (via standard U.S. Mail or e-mail) from the NPC that the ETA Form 9089 currently in process has been withdrawn.

The employer is reminded that an employer may not file a new application merely because the online status changed to "Denied." The employer must wait until it receives the Final Determination Form from the National Processing Center stating the reasons for the denial. This ensures the employer is apprised of all the application's deficiencies.

Question 9: Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

Question 10: Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?

Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.

Question 11: May my employer post a Notice of Filing for a permanent labor certification indefinitely?

Yes, an employer may post a Notice of Filing indefinitely, provided that at the time of filing the permanent labor certification application, the Notice of Filing was posted for at least 10 consecutive business days and those 10 consecutive business days all fell within 30 to 180 days prior to filing the application. In addition, the Notice of Filing must contain the correct prevailing wage information, the correct job description and must comply with all other Department of Labor regulatory requirements.

Question 12: What address must my employer provide on the posted notice of filing?

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

Question 13: For how long must my employer publish a notice of filing in the employer's in-house media?

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

Question 14: Could the publishing of the notice of filing in my employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

Question 15: Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

Question 16: What are the sequencing or timeframe requirements for the various additional recruitment steps?

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

Question 17: When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Question 18: Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

Question 19: Can jobs requiring experience be advertised through an on-campus placement office?

For professional positions, the regulations at 20 CFR 656.17(e)(1)(ii)(D) permit, as an additional recruitment step, optional pre-filing recruitment at or through a college or university placement office. The preamble to the regulation (69 Fed. Reg. 77325, 77345 (Dec. 27, 2004)) assumed that this option would be used only if the employment opportunity requires a degree but no experience. The Department has examined this policy in light of the fact that many college and university placement offices maintain job listings that are used by alumni with experience as well as recent college or university graduates. Consequently, the job opportunities requiring experience are included in the listings making campus placement offices a viable recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this option to be used for employment opportunities even if the job requires experience in addition to the degree.

Question 20: What level of detail regarding the job offer must be included in the advertisement?

Employers need to apprise applicants of the job opportunity. The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.

While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

Question 21: If my employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

Question 22: Does the job location address need to be included in the advertisement?
No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

Question 23: Does my employer's working address need to be included in the advertisement?

No, the employer's physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.

Question 24: Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

Question 25: Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

Question 26: After completing our recruitment, but before filing the ETA Form 9089, our company's name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

The employer must conduct recruitment using its legal name at the time of the recruitment. However, an Application for Permanent Employment Certification (ETA Form 9089) must be filed in the name of the employer's legal name at the time of submission. If a merger, acquisition, or any other corporate change in ownership occurs between the time of recruitment and the time of submission, resulting in a disparity between the employer's name shown on the advertising used to recruit for a job opportunity and the employer's name on the submitted ETA Form 9089, the employer must be prepared to provide documentation -- in the event of an audit -- proving that it is the successor in interest, a determination made based on the totality of the circumstances, including whether the current employer has assumed the assets and liabilities of the former entity with respect to the job opportunity.

Question 27: What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

Question 28: Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

Question 29: Why did the prevailing wage two tier skill level structure change to four levels?

Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:

"Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."

Question 30: When does the four wage level provision go into effect?

The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.

Question 31: Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?
Questions regarding audit criteria will not be addressed. The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the program's integrity.

Question 32: When, during an audit, is there a 90 day suspension of the audit?

Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

Question 33: In the event of an audit, can an application be withdrawn?

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

Question 34: If my application for certification is denied, how long do I have to wait before I can re-apply?

Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same alien cannot be filed. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ "When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?")

Question 35: When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?

The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time either a request for BALCA review or a request for reconsideration is submitted to the Certifying Officer.

Question 36: What is the scope of validity of a permanent labor certification for which a substitution request has been made?

As revised, §656.30(c)(2) states that a permanent labor certification is valid only for the particular job opportunity, the alien named on the original application (unless a substitution was approved prior to July 16, 2007), and the area of intended employment stated on the application (either Form ETA 750 or Form ETA 9089). As the Department made clear in the Supplementary Information that accompanied the Final Rule, 'approved' for purposes of the substitution request means approved by DOL at the DOL stage in processing such a request. Pursuant to §656.11(a), the Department will consider a request for substitution made prior to July 16, 2007, even if it does not make a determination or complete action on that request until after the Final Rule's effective date.

Question 37: My case was denied by the Certifying Officer at the BEC, but the employer or their attorney has appealed this decision to BALCA. Who will handle the case if further action is required by the BALCA decision?

In the event that a BALCA decision is not reached prior to the closing of the BECs in December 2007, OFLC will track the appeal and take any further actions required by a BALCA decision. The employer will be contacted at the appropriate time regarding new contact information.

For more questions about PERM application, please read "Information About PERM Based Green Card Application" or directly contact us.