What is PERM?
PERM is an attestation and audit process in which employers conduct advertising and recruitment prior to filing a labor certification application. In an effort to streamline the labor certification process, DOL created the PERM Labor Certification Process with a rigid regulatory scheme to promote administrative efficiency and initially stated that applications would take between 45 and 60 days to adjudicate, thereby reducing the multi-year adjudications that were the norm under the previous regulation. However, certain applications are selected for an audit, either randomly or because responses have triggered the need for additional information or supervised recruitment. PERM cases typically take several months to adjudicate, and cases selected for audit regularly extend well past one year.
Prevailing Wage Determinations. As part of this process, an employer is required to request a DOL-issued prevailing wage determination for an occupation in which the employer proposes to employ a foreign worker on a permanent basis. DOL issues prevailing wage determinations to ensure that the wages of U.S. workers are not potentially undercut by lower-paid foreign workers. The DOL requires that the wages offered for the PERM position must be equal to or greater than the prevailing wage for the occupation in the area of intended employment.
The prevailing wage is determined by the National Prevailing Wage and Helpdesk Center (NPWC). NPWC primarily relies on the DOL’s Occupational Employment Statistics (OES) online data in making determinations. However, if there is a qualified private alternative wage survey, the NPWC will also accept the alternative wage survey data.
A prevailing wage determination may be valid for 90 days to one year, but the PERM application must be FILED within the validity period that is indicated on the determination.
Job Requirements. Under PERM, the job requirements must be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP). The SVP is the amount of lapsed time required by a typical worker to learn the techniques, skills and knowledge to perform a specific job. Employers may not set higher requirements than those described by the SVP without documentation of “business necessity”. The OES categorizes jobs according to five “job zones”, with each job zone containing a range of SVP levels. Employers are required to demonstrate that a job opportunity’s stated requirements are in fact the actual minimum requirements for the position. Job requirements that exceed the level of education, training and experience deemed normal for the occupation are considered to be “unduly restrictive” unless the employer can demonstrate that the requirement of a higher SVP is based on a “business necessity”. To prove a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to performing the job in a reasonable manner. Experience gained while working for the petitioning employer may continue to be used to satisfy the minimum requirements but ONLY IF such experience was gained in a position “not substantially comparable” to the position for which certification is sought. “Substantially comparable” is defined as a position requiring performance of the same duties for more than 50% of the time.
Recruitment. Under the PERM rule, employers have between 30 and 180 days to conduct recruitment prior to filing the labor certification application. The employer is required to place a job order for a period of 30 days with the appropriate state employment security agency that covers the area of intended employment. In addition, two print advertisements must be placed on two different Sundays in a newspaper of general circulation in the area of employment; however, one national journal advertisement may be substituted for one newspaper advertisement for a job that requires experience and/or an advanced degree. Further, three additional steps are required for professional positions (i.e., those requiring a bachelor’s degree or higher), from a list of ten acceptable recruitment channels. They include: (1) the employer’s internet site; (2) job fairs; (3) job search websites other than the employer’s, including internet versions of a newspaper’s print advertisement; (4) private employment agencies; (5) on-campus recruiting; (6) trade or professional organizations; (7) employee referral programs with clear incentives; (8) campus placement offices, where a degree but no experience is required; (9) local and ethnic newspapers; and (10) radio and television advertisements.
Notice of the job opportunity must be provided to the bargaining representative, or if there is none, notice must be posted for 10 consecutive business days in a conspicuous location at the place of employment. In addition, employers must publish the notice in any and all in-house media normally used to fill the position in the organization in accordance with normal procedures used for recruitment for similar positions in the organization, or for 10 consecutive days, whichever is longer.
Recordkeeping and Documentation. Supporting documentation, including recruitment results, is not submitted up front with the PERM application, but must be provided if selected for an audit by the DOL. The recruitment results would include evidence of the advertising conducted, copies of resumes received, the job-related reasons for rejecting applicants, and a recruitment report, signed by the employer. In addition, the employer is required to retain copies of all PERM labor certification applications and all supporting documentation, as well as to maintain documentation of layoffs in the area of intended employment and in the occupation that is the subject of the labor certification or a related occupation. All documentation must be retained for five years.