For many seeking work visas and employment-based green cards in the United States, the journey begins with obtaining a PERM labor certification from the Department of Labor (DOL). This process includes a critical PERM advertising phase to ensure fair employment practices. The primary goal is to verifry that hiring foreign workers doesn't disadvantage qualified U.S. job seekers.

Prior to submitting the PERM application, employers are mandated to rigorously adhere to specific recruitment steps for the available position. Navigating through the PERM advertising and recruitment process is often intricate, with stringent DOL regulations that must be meticulously followed. For comprehensive details on these requirements, visit the U.S. Department of Labor's Foreign Labor Certification page.

For both professional and non-professional roles, PERM advertising regulations stipulate comprehensive recruitment measures. This critical phase necessitates employers to attest to fulfilling all advertising and recruitment prerequisites as part of the PERM process.

Should the DOL have concerns regarding the adequacy or authenticity of the advertising process, it may trigger a targeted audit. Such audits can substantially hinder the processing timeline of an employee's work visa or green card application. While some audits are conducted randomly, diligently complying with the PERM advertising guidelines significantly decreases the likelihood of being selected for a targeted review. Adhering closely to these procedures is thus vital in ensuring a smoother progression of your employee’s immigration application.

PERM Advertising

Initiating the PERM recruitment and advertising process begins with a crucial step: determining the prevailing wage for the job position in question. This wage, as established by the Department of Labor (DOL), reflects the standard rate for a specific role within your geographic area.

It's essential to ensure that any salary displayed in your job advertisements aligns with or exceeds this prevailing wage. This aspect is particularly critical when it comes to the Notice of Filing, a key component of the PERM process. Displaying a wage lower than the prevailing rate can lead to compliance issues and affect the legitimacy of your PERM application. Therefore, adhering to the DOL's wage guidelines from the outset is vital in laying the groundwork for a successful PERM recruitment campaign

For more information on prevailing wage guidelines and other related programs, please visit the DOL's Prevailing Wage Information page.

Prevailing Wage Determination

How Long Will It Take DOL To Process A PERM Application?

Through electronic filing and the audit-based adjudication process, DOL reports that “clean” applications take less than 60 days to adjudicate. In users’ experience, applications may be processed very quickly – sometimes in less than a week – but normally take 60-90 days. Processing times for audited cases also vary, with some being decided quickly and others not processed for months.
How long is PERM advertising?

The job ad needs to be active for at least 30 consecutive days (including weekends).
What information do we need to provide when requesting a quote for services?

Please provide the ad text and specify the services requested. If you have specific media sources in mind, please mention them. If you're unsure, we can provide recommendations.
What is PERM advertising?

Advertising the job position is a crucial step in the PERM process. The main objective is to vet the employer to make sure that hiring foreign talent does not displace domestic workers who could otherwise occupy the position.
What Print Ads Are Required Under PERM?

Prior to filing an application for labor certification, an employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. For higher-level positions requiring experience and an advanced degree, the employer may use an advertisement in a professional journal in place of one of the Sunday ads. Both ads must have been placed more than 30 days, but not more than 180 days, before filing, and may be placed on consecutive Sundays. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the position specific enough to apprise U.S. workers of the job opportunity.
How are tearsheets delivered?

After the PERM advertising cycle is complete, Atlas will deliver an e-tear package of all ads included in your requisition.
What is the prevailing wage determination?

The PWD is the wage that the U.S. DOL has deemed to be appropriate for this particular position in your geographic location.
What Is PERM?

PERM is a system through which employers can hire a foreign national by submitting an application electronically or by mail to DOL in which they attest that they have taken certain steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker for the position. Employers will be responsible for documenting their compliance with the recruitment steps enumerated in the regulations, but they will only submit that documentation to DOL if DOL chooses to audit their applications.
Is prepayment required?

Yes, prepayment is required. We will provide you with a payment form that should be submitted along with your approval to proceed with the ad.
How much does an advertisement cost?

The cost of placing a PERM ad depends on the word count and the city where the position is offered. Once you provide your ad text to your Atlas representative, we will contact newspaper representatives to obtain an accurate quote.
How many radio spots should we run?

While there are no specific regulations regarding the required number of radio spots, we recommend a minimum of 2 spots.
Can you suggest newspapers for advertising if I'm unsure?

Absolutely! Based on our extensive experience and industry research, Atlas is happy to provide suggestions on which newspapers to advertise in.
Can we initiate the 2 Sunday ads over a holiday weekend?

There are no regulations regarding this matter, but many of our clients prefer to avoid starting the PERM recruitment cycle over holidays.
How long should online ads run?

Typically, most of our clients have online ads running for a period of 7 to 30 days.
Do you capture screenshots of the online ads?

We capture screenshots on the first and last days when the online ads are active.
How long does the SWA ad need to be active?

According to regulations, SWA (State Workforce Agency) ads need to be active online for a duration of 30 days.
What happens during the recruitment process, and how long does it take?

The recruitment process involves the employer conducting a thorough search for qualified U.S. workers. This includes job postings, advertisements, and other recruitment activities. The recruitment process typically takes 2-3 months, including a 30-day job posting period and time for resume reviews.
What should I do if my PERM application is selected for audit?

If your PERM application is selected for audit, it means the DOL requires additional information to verify the details of your application. This can extend the processing time by several months. It is crucial to respond promptly and accurately to any audit requests to avoid further delay
How long does the Prevailing Wage Determination (PWD) take?

The PWD process currently takes approximately 6-7 months. This step involves the Department of Labor (DOL) determining the appropriate wage for the job based on its location and required experience level.
What factors can affect the PERM processing time?

Several factors can influence the PERM processing time, including: Volume of applications: High volumes can lead to longer processing times. Completeness and accuracy of the application: Incomplete or inaccurate applications can result in delays. DOL backlogs: Periods of high demand can create backlogs at the DOL. Potential audits: If the application is selected for audit, this can significantly extend the processing time.
What is the timeline for filing the I-140 petition after PERM certification?

Once the PERM application is certified, the I-140 petition is typically filed within 2-3 weeks. The processing time for the I-140 petition is 4-6 months under regular processing, but premium processing is available for expedited service.
Can I check the status of my PERM application online?

Only employers or authorized attorneys can check the status of a PERM application through the DOL's case management system. Applicants cannot directly check the status online but can receive updates from their employer or attorney
What is the typical timeline for the PERM process?

The PERM process generally involves several stages, each with its own timeline: Prevailing Wage Determination (PWD): 6-7 months Recruitment Process: 2-3 months PERM Application Processing: 13 months I-140 Petition: 4-6 months (with premium processing available)

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PERM Advertising Process

For both professional and nonprofessional occupations, specific mandatory recruitment steps are essential to satisfy the Department of Labor (DOL) that a genuine effort has been made to fill the position with a suitable U.S. worker. These steps are designed to cover major employment-seeking avenues:

1. Placing a Job Order

State-Specific Placement: It’s crucial to place the job order with the SWA in the state where the job is located. For instance, a job in Texas, regardless of the employer's location, requires placing the order with the Texas SWA.
Duration of Job Order: The order must run for at least 30 consecutive days. To ensure compliance, extending this period slightly is advisable.
Post-Order Filing Timeline: After the job order's completion, there's a mandatory waiting period before filing the ETA 9089 form. For example, a job order from January 1st to January 31st necessitates waiting until March 3rd for filing.
Record Keeping: Maintain printed evidence of the SWA job posting as part of your PERM documentation.

2. Advertisements in Newspapers & Professional Journals:

Sunday Newspaper Ads: Place an ad in two Sunday editions of a local newspaper with the highest circulation in the job's location.
Rural Area Consideration: If there's no Sunday edition, use the most widely circulated newspaper available.
Ad Requirements: The ad must include your business name, application instructions, and an overview of the position. Ensure the ad gives a clear picture of the job requirements.

3. Internal (in-house) Job Posting

Posting Duration: An internal job posting, or Notice of Filing (NOF), must be visibly posted at your company's physical location for 10 consecutive business days. Union positions require notification to the union representative. NOF Requirements: The NOF should inform employees of the PERM Labor Certification process underway, offering them the chance to submit relevant documentary evidence. Essential NOF Content: It must include your business name, job description, wages, and contact details for resume submission.

Key Considerations for NOF

Critical Step: Overlooking this step can jeopardize your application.
Legal Assistance: Collaborating with an immigration lawyer ensures compliance and thorough execution.

Common Reasons for PERM Denial due to NOF Issues

Omission of Basic Information: Employer’s name, position's wage, or job location.
Recruitment Report Errors: Failing to record NOF posting dates.
Missing Certifying Officer Address: Not including the address of the overseeing officer.
Inconsistencies with ETA 9089: Job requirements or details not matching those on the ETA 9089 form.

4. Additional PERM Ad Requirements

On top of the above requirements, an employer can choose a combination of any 3 additional recruitment methods outlined below to meet the additional recruitment requirement for professional positions

Job Fairs: Participating in relevant job fairs.
Company Website Ads: Posting on the company’s website, with screenshot records.
External Job Search Engines: Using platforms like Monster.com or Indeed.com.
On-Campus Recruiting: Applicable for positions not requiring extensive experience.
Trade or Professional Organizations: Advertising in relevant journals or publications.
Private Employment Firms: Keeping contracts and correspondence.
Employee Referral Programs: Offering incentives like bonuses or vacation days.
Local College Campus Placements: Advertising through campus placement offices.
Local and Ethnic Newspapers: Targeting newspapers in the job’s area.
Radio and Television Ads: Keeping records of contracts and payments.

It is important to note that each of these ads can have a PERM advertising duration of any length of time whether it be just one day or several. The choice is up to you. However, you must wait at least 30 days after the end of your ad campaigns to file your ETA 9089 form. Because of this, it is often advisable to run the job order, notice of filing, and all ads as concurrently as possible to avoid unnecessary delays.

Non-Professional PERM Advertising Requirements

For non-professional positions in the PERM process, the requirements are somewhat streamlined. Employers need to fulfill only two key steps: placing a job order with the State Workforce Agency for a duration of 30 days, and publishing the job advertisement in two consecutive Sunday newspapers. This approach ensures that a wide range of potential applicants can be reached effectively.

PERM Requirements for EB2 Green Cards

For EB2 green card sponsorship, the PERM Labor Certification is often a prerequisite. However, exceptions exist under specific circumstances, such as when an applicant can self-petition through a National Interest Waiver (NIW). This waiver allows exemption from the standard job offer and PERM requirements when the applicant's enterprise is deemed significantly beneficial to U.S. society, economy, or culture. To successfully obtain an NIW, the applicant must convincingly demonstrate that the usual PERM process would not serve the national interest. EB2 green card applicants considering an NIW should consult with their immigration lawyer to understand the necessary steps and qualifications.

For a detailed overview of the EB2 category and more information about the National Interest Waiver, please visit USCIS’s official page on Employment-Based Immigration: Second Preference EB-2.

PERM Recruitment after Advertising

Following the advertising phase, the employer's duty is to conduct interviews with candidates who meet the job requirements, including U.S. citizens. In cases where U.S. citizen applicants are not selected, the employer must document valid, non-discriminatory reasons for this decision in the recruitment report. The entire recruitment process, including advertising, should be completed within a 180-day window prior to filing the labor certification application and concluded at least 30 days before submitting the ETA 9089 form. Given the intricacies involved in PERM recruitment and advertising, seeking guidance from an immigration attorney is advisable to ensure adherence to all necessary procedures and regulations.

Documents Required from the Employer – PERM Recruitment Report

Throughout the PERM recruitment process, employers must maintain comprehensive paper documentation. This includes keeping copies of resumes, applications, and recruitment reports, especially during the interview phase.

Key Elements of the PERM Recruitment Report

The recruitment report is a crucial document that details the number of hires and specifically, the U.S. workers not selected for the position. It's important to provide detailed reasons for the non-selection of U.S. applicants, ensuring these are sufficiently clear for any potential audit. The Department of Labor's primary aim is to verify that no U.S. worker is unfairly displaced by a foreign worker. Detailed and accurate documentation in the recruitment report is vital, particularly regarding the reasons for rejecting U.S. worker applications.

Additionally, employers should meticulously record all correspondence, contracts, and payment receipts related to ad campaigns. This serves as proof of efforts made to find qualified U.S. job applicants. Furthermore, it's crucial for the information in your PERM recruitment report to align perfectly with the details on the ETA-9089 form and the Notice of Filing displayed in your workplace.

Boundaries When Rejecting U.S. Workers

When considering U.S. worker applications, employers must have legitimate and lawful reasons for rejection. This includes assessing whether the applicant could perform the job with a reasonable amount of on-the-job training. Employers should avoid scenarios where excessive training for fundamental job skills is required. Evaluating each candidate's suitability requires careful judgment, and consulting with a qualified attorney is advisable for guidance.

Tips to Reduce the Chance of a PERM Audit

With approximately 30% of PERM applications subject to random audits by the DOL, following these tips can help minimize the risk:

Adhere strictly to all job advertising requirements.
Collaborate with a qualified immigration attorney for accurate paperwork and submission.
Keep thorough records of all recruitment efforts, including candidate resumes and applications.
Document digital evidence, such as printing screenshots of ads on your website.

Potential PERM Audit Triggers

Certain factors can increase the likelihood of triggering a PERM audit:

Protests or layoffs by the employer.
Positions requiring less than a Bachelor's Degree, or roles requiring a degree but no experience.
Trade-related occupations.
Re-submissions of denied applications within the same year (for supervised recruitment).
Employers operating public schools.
Familial ties between the employer and employee.
Job requirements that deviate from industry norms.

How the PERM Advertising Process Affects Audits and Supervised Recruitment

The PERM advertising process is integral to the application's success and can significantly influence the likelihood of an audit. Typically, employers are required to keep detailed records of all advertisements and applicant rejections, compiling this information into a recruitment report for the DOL. Despite thorough documentation, there’s a possibility of being audited due to random selection or issues in the report. Factors that might trigger a targeted audit include insufficient evidence for rejecting candidates, incorrect ad placement, inability to pay the prevailing wage, or familial ties with the foreign beneficiary. An audit can extend the processing time by 9 to 18 months, making compliance with advertising guidelines crucial.

Supervised Recruitment

In some cases, employers might undergo supervised recruitment, especially if issues have arisen in previous PERM processes. Under supervised recruitment, a Certifying Officer (CO) assigned by the DOL reviews each document as ads are placed and candidates are interviewed. If supervised recruitment is initiated after your recruitment efforts, it may require restarting the process under the CO’s guidance. This step is generally taken due to serious concerns about the accuracy or legitimacy of the recruitment report or documentation. It underscores the importance of precise adherence to PERM guidelines from the outset.

PERM Denial

Denial of a PERM application can occur due to various reasons, including mistakes on the ETA 9089 form, inadequate supporting documentation, or violations of PERM advertising guidelines. In the event of a denial, two main options are available:

Motion to Reconsider: Submitting new evidence or justifying the absence of crucial information at the time of initial filing.
Request for Review: An appeal where the case is reviewed by the Board of Alien Labor Certification Appeals (BALCA) for an unbiased decision. In dealing with a PERM denial, consulting with a PERM attorney is essential to explore these options and navigate the complexities of immigration law effectively.