- Hui Zeng, Esq.
PERM Labor Certification- What are the recruitment requirements?
Abstract: In the process of PERM application, recruitment is a very critical step. Based on the rule of DOL (Department of Labor), the employer needs to conduct a good-faith PERM recruitment process for the proffered position before submitting the PERM application. This is to ensure the U.S. workers’ (American citizens, nationals, lawful residents with permanent residents) opportunities are secured and protected. The PERM recruitment process must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment. Therefore, how is the recruitment process defined as mandated by the DOL? What is the requirement for the PERM Labor Certification? Based on these two points, we will help you further understand relevant questions about the application for PERM Labor Certification to ensure success in the first step in completing the PERM application.
A small takeaway: There are three major steps for EB-2/EB-3 employment-based green card: PERM, I-140 petition, and I-485 application. To understand the three major steps of the employment-based green card, please read “How to obtain an EB-2/EB-3 employment-based green card? Overview of the three major steps!”
I. Recruitment time requirement
Real case: Wu works in A company, and the company is about to start the recruitment process in accordance with DOL rules.
Question 1: If A company started the required recruitment on March 1, 2019, and completed the process by April 10, 2019, in this case, when would A company be able to submit the PERM application?
The employer can submit the PERM petition, the earliest, 31 days after the required job advertisement comes to an end; the latest by, within 180 days after the job advertisement starts, otherwise the recruitment will expire and lose its effect. In this case, the earliest A company can submit the PERM petition is May 12, 2019, and cannot be later than August 27, 2019.
II. Recruitment channel requirement
Question 2: According to the DOL regulation in relevance to the PERM recruitment, through which channel can A company conduct the recruitment activities?
1. Three mandatory recruiting channels
The PERM position recruitment needs to include the three mandatory recruiting channels:
The Notice of Filling has to be posted internally in the company. The Notice of Filling has be to posted for 10 days. In the Notice of Filling, it has to specify the position’s salary or the range of salary.
The Job Order for the position has to be posted on the job search website in the State Workforce Agency (SWA) where the position will be located in. The posting has to be posted for at least 30 days.
The job advertisement has to be posted in two Sunday newspapers of general circulation where the work will be located, for Two Sundays consecutively. However, as of now, the DOL has not defined the meaning for “General Circulation”, nor designate the required newspapers. To avoid an audit on the PERM petition from DOL, please consult your attorneys in clarifying the publishing information of the Sunday newspapers where the work will be performed, to make sure the newspaper's requirement is fulfilled.
Question 3: What happens if the newspapers where Wu’s work is located does not have a Sunday circulation?
If the position is located in a rural area, and the local newspapers do not have a Sunday circulation. Then, A company can post the job advertisement in the paper of the area with the widest circulation. However, if the position has specific requirements for work experience and an advanced degree in which positions as such are usually posted in professional periodicals, in this case, the employer can advertise the job on the periodicals to replace one of the Sundays.
2. Three additional recruiting channels
If Wu’s position is a professional position (referring to duties that can only be fulfilled by those who have a bachelor’s degree and above), in addition to the above three required recruiting channels, the employer also has to conduct the recruitment activities through the following three recruiting channels:
Job fair
Employer’s website
Job search website other than the employer’s
On-campus recruiting
Trade or professional organizations
Private employment firms
Employee referral program with incentives
Campus placement office
Local and ethnic newspaper
Radio and television advertisements
Recruitment is the most important part in the PERM application process, which is highly technical. A slight deviation may result in the application being denied. In the recruitment process, please consult a professional attorney if you have any questions.
III. Recruitment Report
After completing the recruitment activities, the employer needs to write a recruitment report explaining the channels in which the recruitment was conducted and the corresponding recruitment results. In the report, the employer needs to specify the total number of applicants, the actual number of applicants hired, the number of rejected U.S. workers, and the reason for rejection.
Attorney Zeng’s reminder: DOL might conduct an Audit for some of the cases. Once DOL has decided to audit, the employer has to respond and submit all evidence within 30 days, proving the recruitment activities along with the recruitment report conducted during the process of applying for PERM. The employer should keep all the materials up to 5 years after submitting the application, to present to DOL should they decide to audit.
The above is our explanation of the PERM recruitment requirements. We hope this article can help you properly plan the PERM recruitment activities along with the PERM application. For other questions, please continue to follow us for further postings in relevance to this topic. We wish everyone the best of luck at every step of the PERM process and to quickly obtain the green card!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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