The PERM process has been a source of great frustration over the past year because of the longer than expected processing times, erroneous denials, and the inability to get a prompt response to requests for reconsiderations. However, Wilner & O'Reilly has successfully mastered the PERM puzzle and obtained speedy approvals within 90 days of filing electronically. Here are just a few of our success stories and suggestions to help you with the process:
1. The Employer and The Alien Worker Should Both Review The ETA 9089 Application Form Before Signing. Often times, the client does not take the time to understand what they are signing. It is very important that the ETA 9089 is completed accurately prior to filing since mistakes are impossible to correct short of refilling a new PERM application. The successful PERM cases have been the ones where both the Employer and the Alien Worker are actively involved in the process. For example, the ETA 9089 requires the Alien Worker to list all jobs held during the past 3 years and any other relevant work experience that qualifies the Alien for the job opportunity for which the employer is seeking certification. Client A is an Accountant who is understands the necessary educational requirements and experience for the position and timely provides the employment verification letters and transcripts from schools. Client A's employer also understands the importance of the professional recruitments and timely completes the 2 Sunday ads plus three additional efforts within the 180-day period. The case was electronically filed in January 2006 and approved in March - less than 90 days.
2. Recruitment Must Be Placed More Than 30 Days, But Not More Than 180 Days Before Filing. In accordance with the Department of Labor's regulations, the recruitment process is ensure that were no U.S. workers able, willing, qualified and available for the position. In PERM cases, all of the recruitment/advertising occurs before the labor certification application is filed. The recruitment/advertising sources involved in a PERM application must be through sources normal to the occupation and industry. The following are minimal standards (Note: professional positions that require a Bachelor's Degree will require three additional steps):
- The employer must place two advertisements on two consecutive Sundays in the newspaper of general circulation in the area of intended employment.
- The employer must also place a job order with the State Workforce Agency for 30 days.
- For professional recruitment: only one of the three additional recruitment steps may take place within 30 days of filing.
The DOL will look at all of the employer's recruitment efforts for the position conducted between 30 and 180 days before filing. Even one day over the 180-day time frame is grounds for a PERM denial.
3. The Offered Wage Must Be Equal To Or Higher Than The Prevailing Wage. Government surveys such as the OES provides four levels of wages commensurate with experience, education, and the level of supervision. Client B is a Budget Analyst who is paid an hourly wage that is equal to the prevailing wage. It is important to inform the Employer upfront what the prevailing wage is in a certain geographic area so that the Offered Wage is not lower than what is published on the Foreign Labor Certification Data Center's Online Wage Library. An employer must pay the Alien worker the prevailing wage either from the time permanent residency is granted or from the time the alien is admitted to take up the certified employment. Note that when "an alien is admitted to take up the certified employment" also refers to admission as a permanent resident. Client B's PERM was certified in March of 2006 but the Employer is not required to pay the prevailing wage until the I-140/I-485 petitions are approved (which may be a few years until the priority date becomes current).
4. All Employers Should Obtain A Federal Employer Identification Number (FEIN) In Order To Electronically File Applications. While most employers already have a Federal Tax ID number, individual employers that employ domestic help (i.e. housekeeper, nanny, etc.) often do not. Client C is an employer looking to hire a nanny for her two kids. Her initial PERM application was denied essentially because she did not apply for a Federal ID number. We subsequently advised her to obtain one and we were able to successfully refile the PERM application An employer should apply for an EIN early enough to have the number when we need to file the online ETA 9089. You can get an EIN quickly by applying online at http://www.irs.gov/businesses/small/article, or by calling the Toll-Free phone number 800-352-7034.
There is a method to the madness that is PERM and finding the correct methodology requires experience. When seeking attorneys to file your PERM application, find lawyers with a proven track record. Getting your PERM application approved may only be a phone call away.