Employer's Role in Filing a PERM Application
Even with an attorney, an employer must be actively involved in the labor certification process.
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In implementing the process by which employers may seek labor certification in order to hire a foreign worker, known as PERM, the Department of Labor (DOL) wanted to ensure each employer's participation. The concern was that employers be aware of and take responsibility for the accuracy of the information contained in their applications.
One of the ways the DOL achieved this goal was by requiring employers to establish an online account with the PERM system and then either prepare and file the application on its own or designate an attorney or agent to access the employer's account and file the application as an authorized user.
Therefore, as the employer, even if you have an attorney involved, you still will need to take some basic steps to facilitate the process.
Employer’s Steps in the Online Filing Process
There are four key steps that employers must take in the online filing process:
1. Establish on online account.
2. Designate an authorized attorney to allow access to the account.
3. Prepare and submit the application (either yourself or via the attorney).
4. Respond to the Department of Labor's brief questionnaire sent by email or conducted by a DOL representative if you do not complete the email questionnaire within seven days.
How to Establish an Online PERM Account
You will need information such as your company's or organization's Federal Employer Identification Number (or FEIN) and the year it was formed. You also will need to select a North American Industry Classification System (NAICS) code, which describes your type of business. You can search the codes available to find an appropriate match. For example, if you search "engineering," you will find a wide variety of engineering services under the classification number 541330.
In some cases, the DOL will request documents to confirm the existence of your organization. Typical requests ask for proof of the FEIN, such as the original Internal Revenue Service letter assigning the FEIN, copies of articles of incorporation or organization, certificate of good standing, copies of tax records, and copies lease/mortgage documents. Once you send PDF copies to the Department of Labor by email, you should receive a follow-up confirmation a few days later confirming creation of your account.
How to Designate an Attorney Who Can Access to Your Account
After you have completed the registration, the Department of Labor will verify the information and send you a login and password. The second step will be to access your account and go to the "manage agents/users" tab to designate the attorney as an authorized user.
The attorney will receive a separate login and password directly from the Department of Labor. You still will have access to the account, which will allow you to see the application that the attorney prepares on your behalf.
Preparing and Filing the Application
As soon as you have completed the recruitment effort and passed the mandatory 30-day waiting period, you can prepare and file your application. It's possible to prepare the application in advance, but various date-sensitive triggers will caution you against actually submitting the application until the 30-day period has passed.
Once you have (or the attorney has) entered the data into the form, the next step is to enter the organization's personal identification number (PIN) and click on the button to submit the application. The Department of Labor assigns the PIN as part of the registration process outlined above. After submitting the application, a new screen will appear with a link, allowing you to print a hard copy of the application.
After the PERM system receives the application, it will generate two emails that will be sent to the attorney and the employer's contact person. The first email simply confirms the filing. The second email asks you to respond to an online questionnaire.
Only the employer may respond to the questionnaire – another example of the Department of Labor requiring the employer's involvement in the process. If you do not respond within seven days, a DOL representative will call you to verify the information over the phone. There are four basic questions:
1. Do you, in fact, work for the employer?
2. Did you authorize the application filing?
3. Do you have a job opening?
4. Do you want to sponsor the employee?
Provided, of course, that you authorized the attorney to prepare and file the application, the answer is "yes" to all four questions. The job is considered "open," because it is not presently held by a U.S. worker. Once you respond to the questionnaire, either online or by phone, the Department of Labor will place the application in the processing queue.
When the Department of Labor established the PERM system, it indicated that initial processing times would be in the 45-60 day range. That held true for a while. As of 2013, initial processing times are closer to six months. If there is an audit, it could take another eight months to receive a final determination (approval or denial). You can see current processing times under the "PERM & PW Processing Times" tab at the DOL's Employment and Training Administration website.