Managing Attorney
PERM or permanent labor certification is a key step in being able to sponsor foreign workers to come to America to work for your company. This is accomplished by filing for labor certification with the Employment and Training Administration (ETA) of the United States Department of Labor (DOL). While it may sound simple and straightforward, it actually takes a number of steps to get permanent labor certification. As a result, it is crucial to have the assistance of an experienced immigration attorney who will work with you. This will help you avoid the common mistakes and misconceptions surrounding the PERM process.
How does the PERM application process work?
The purpose of the PERM process is to demonstrate to the DOL that there are no American citizens qualified to do the jobs for which you are hiring foreign workers. It is also required to ensure that American businesses do not bring in foreign workers to undercut the wages and working conditions of U.S. citizens. This is why you have to demonstrate to the ETA that you will pay a prevailing wage equal to or greater than similar workers in the field, and that you have made an unsuccessful effort to hire U.S. citizens for the position.
There are three steps to the PERM process. First, you have to conduct a number of recruitment steps to demonstrate that you made an effort to fill the position at your company with an American worker. This will entail placing an ad with at least two newspapers and filing these ads with the Texas Workforce Commission, the state workforce commission governing employment in Texas. There are additional requirements if your position is for a professional employee. This all must be done within six months of the filing date for PERM. The second step is to give notice that your company will be filing for PERM to the employees at your workplace or through a union if your business is a union shop. The final step is to file the PERM application with the ETA. This will need to include all of the requisite information.
It is crucial that you not skip a step, and that you provide as much information as possible. The key is to demonstrate a number of things. First, you need to show that you made a reasonable effort to recruit a U.S. citizen for the position. If you interviewed any Americans, you will need to show the reason why they were not hired. It is also vital that you show why your business should be granted PERM for this position.
What are some common mistakes in filing for PERM?
One of the most common mistakes of employers is to underestimate the process. If you do not properly complete all of the steps in applying for PERM, the ETA will reject your application. The DOL and Texas Workforce Commission take these applications very seriously, so this is not a simple application. It is vital that you and your attorney work to make sure that your business is entitled to PERM.
Another common mistake occurs with listing the requirements for the job. Some employers are too specific, while others are not specific enough. If the DOL suspects that you have tailored the requirements too closely to the prospective foreign worker, they may think you are trying to disadvantage U.S. workers. Conversely, if you are not specific enough, your PERM application may be rejected since it will be unclear why you are hiring foreign workers for the positions.
Many employers don’t understand the concept of the prevailing wage. The DOL wants to make sure that this will be the actual wage paid to the worker. This must be exclusive of bonuses, commissions and other contingent incentive pay. Employers may fall into a trap if they include these incentive payments in calculating the prevailing wage.
What are some misconceptions about PERM?
Many employers may think that PERM is just for big companies. This is not true. There is no size limit to the businesses that may apply for PERM. You can even apply if you are a start-up. If you can comply with the requirements and demonstrate the ability to pay the foreign employee, then you are eligible for PERM.
A common misconception is that PERM goes into effect upon filing for labor certification. This is untrue. Your application must be approved before you can begin actually hiring the foreign workers.
Many businesses undergo restructuring or get sold to third parties. If your business currently has PERM certification, then the successor company does not have to refile as long as it is willing to assume the obligations under PERM.
If you are looking to hire foreign workers for your business, our firm can assist you with the PERM process
The PERM process provides a way for businesses to get the authorization they need to hire foreign workers. The process is complex, which is why it is crucial that you have the experienced immigration attorneys at the Zepeda Law Firm assist you with your legal needs.