When a U.S. employer sponsors a foreign worker for a green card (lawful permanent residence), the law usually requires the employer to complete a process known as labor certification, or "PERM." This process involves a number of tasks, including the employer placing multiple advertisements for the foreign worker's prospective job and certifying to the U.S. Department of Labor (DOL) that no willing and qualified U.S. workers applied for the position.
For new and experienced employers alike, the PERM process can be difficult. It involves strict timeframes and deadlines, rules regarding the content of advertisements, and more. Here, we'll look at the basics of the first, recruitment phase of the PERM process, including both mandatory and additional recruitment steps.
The basic point of the full PERM process is to prove to the DOL that the foreign worker will not displace any United States worker by taking the job being offered. The U.S. government expects employers to make a good faith effort to hire from within the United States first, without turning to a foreign national. Publicizing the job widely and actually interviewing candidates is an obvious way to do that.
NOTE: It is solely the employer's responsibility to pay for the PERM advertisements. By law, the foreign worker is prohibited from paying for any of the costs associated with PERM, which include the advertisements and attorney fees.
PERM is basically a three-step process. This article focuses on the first step, in which the employer must recruit applicants for the job opportunity by placing required advertisements. But let's take a quick look at where this fits into the big picture (including four or more possible steps).
Step 1: The U.S. employer of a foreign national must place three specific types of advertisements: a job order with the state's workforce agency and two Sunday advertisements in a newspaper of general circulation appropriate to the type of employment. The employer also has to place a total of three additional advertisements, but has the option of choosing these ads out of ten available options.
Step 2: While the job advertisements are running, the employer must review all of the resumes received for the job opportunity. If the employer cannot clearly and obviously disqualify a U.S.-based candidate based upon the candidate's resume alone, the employer must contact the person for an interview. The employer must keep detailed records of all resumes received, interviews conducted, and reasons for rejecting all applicants.
Step 3: At the close of the recruitment period, the employer completes ETA Form 9089 and submits it electronically to the DOL. The ETA Form 9089 requires information about the employer's recruitment procedure, information about the foreign worker's education and work experience, and information about the job opportunity such as requirements, duties, position title, and so forth.
Possible Surprise Step 4: DOL audits a certain percentage of applications, some chosen randomly and some targeted for a particular reason. Because of this possibility, every labor certification recruitment should be conducted as if in expectation of an audit. This means promptly contacting any job applicant who looks strong on paper and keeping careful records of all contacts and attempted contacts as well as any actual interviews. See below for further discussion of what happens during these audits.
After PERM Approval: Once the DOL approves the PERM, the employer then files a visa petition on Form I-140 with U.S. Citizenship and Immigration Services (USCIS). USCIS must approve the I-140 petition in order for the foreign worker to obtain a green card. For detailed information on this, see Filling Out Form I-140 to Sponsor an Immigrant Worker.
The mandatory recruitment steps for the U.S. employer seeking to hire a foreign national and sponsor that person for a green card are the job order and two Sunday newspaper advertisements.
First, the employer must place a job order with the workforce agency in the state where the job will be performed. For example, let's say Company A wants to hire a foreign national to work in the position of Programmer Analyst. Company A is located in New York, but the Programmer Analyst will work in Massachusetts. Company A must post the job order with the Massachusetts workforce agency, NOT New York's workforce agency.
All states vary on the requirements for their job orders. For example, one state might require that the employer's job order include the position's salary, the company's benefits package, and the position's proximity to public transportation. By contrast, another state might not require the salary on its job orders.
To place the job order, the employer should run an Internet search for the appropriate state "workforce agency" or "department of labor." Most states require employers to create free Web accounts in order to place job orders. In general, these websites have helpful FAQs and contact information for the employer to utilize if confused about any of the job order requirements.
The job order must run for 30 consecutive calendar days (weekends are included in the 30-day count). Because of the importance of this time frame, it is highly recommended that employers let their job orders run for longer than 30 days, such as for 35 or 36 days, to make absolutely sure to comply with the 30-day rule.
Importantly, the employer cannot file the ETA Form 9089 until at least 30 days have elapsed since the date the job order ended. For example, let's say an employer posted a job order to run from May 1, 2024 through May 31, 2024. The employer cannot file the ETA Form 9089 any earlier than June 30, 2024, because June 30 is the 30th day after the job order expired. (The purpose of this waiting period is to allow any interested person to provide the Department of Labor with information that could be relevant to the application.)
The second mandatory recruitment step is the two Sunday newspaper advertisements, which must contain:
As you can see, the advertisements do not have to contain every single job duty and requirement. They don't even have to mention the salary, unless there is a state law requiring it. However, the employer must make sure the advertisements adequately inform applicants of the job opportunity.
There is another mandatory step that employers must complete, called the "posting notice." Its purpose is not really to advertise for the position, but merely to alert the employer's current workers that the employer is filing a labor certification. The posting notice must be placed at the employer's place of business for ten consecutive business days. (Weekends typically do NOT count for this time frame, though they might if the employer can show that its operations are open on the weekends and that the position regularly involves weekend shifts.) The notice must contain the job title, duties, requirements, an attestation that the notice was posted for ten days, and the following language:
"This notice is being posted in connection with the filing of a Permanent Alien Labor Certification for the above mentioned position with the Department of Labor. Any person may provide documentary evidence bearing on the application to the Certifying Officer of the United States Department of Labor, Employment and Training Administration, [plus the appropriate address]."
That address is (as of early 2024):
U.S. Department of Labor, Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue NW, Room N-5311
Washington, DC 20210.
The one exception is for applications involving supervised recruitment, which must continue to be sent to this (older) address:
U.S. Department of Labor, Employment and Training Administration
Office of Foreign Labor Certification, Atlanta National Processing Center
Attn: Supervised Recruitment
P.O. Box 56625
Atlanta, GA 30343.
If there is a certified collective bargaining unit representative for the area of intended employment, the employer must provide this representative with the posting notice. However, in this case the employer does not have to also post the notice at the employer's office.
Employers must also wait 30 days from the last date of the posting notice before filing the ETA Form 9089. Therefore, it is typically recommended that the employer post the notice during the same time frame that the job order is running, in order to avoid lengthy delays in filing the ETA Form 9089.
Along with the above mandatory recruitment, the employer is required to select three of the following ten additional methods of recruitment for "professional" occupations, which means jobs that normally require at least a bachelor's degree.
Sometimes, these additional recruitment steps are referred to as "optional." This wording is misleading, however. The law mandates that the employer choose three additional advertisements. The only optional part is which three it chooses.
All of these ads must contain the same information that appears in the Sunday newspaper ads, so most employers simply use the same language for all of the PERM advertisements.
The following ten options are available to the employer:
Notably, there is no time requirement for the three additional recruitment steps. For example, an employer could place an ad on its website for just one day, or for 15 days. Or, an employer could place an ad to run in the local newspaper for just one day, or for a full week.
Here is a summary of important time restrictions that U.S. employers must remember when completing the PERM process:
Employers must retain proof of all advertisements for a period of five years. This includes original newspapers that contain the advertisements, printouts from the state workforce agency website, the posting notice, and the rest. It's possible the U.S. government will inspect these at some point.
If you undergo a labor certification audit, whether random or targeted, you can expect to be asked to produce certain core documents. First, you will be called on to document the posting of the required worksite notice, as well as all the recruitment you conducted—the two Sunday ads, the state workforce agency job posting, and, for professional positions, the three additional "optional" methods. (See Employer Recruitment Requirements Under PERM.)
In addition, the standard PERM audit requires the employer to submit a detailed report on the recruitment, accounting for all resumes received and explaining why each U.S. applicant failed to meet the minimum requirements for the position to be certified. The DOL also typically requests copies of the resumes themselves.
DOL regards the very unpredictability of the labor certification audit as essential to its function, ensuring the integrity of the program. Still, employers' experience of audits over time suggests certain persistent concerns.
Before certifying a particular job for immigration purposes, DOL wants to make sure that the job has been genuinely held out to U.S. workers who possess the minimum qualifications to perform it. Thus, any job requirement that seems "tailored" to the background of the sponsored foreign worker could draw an audit.
Foreign language capability, in particular, will almost certainly require justification in an audit, unless it's clearly intrinsic to the job. Likewise, an audit can be triggered by any job qualification that exceeds what DOL considers to be the "normal" requirements for the occupation in question, or by a combination of requirements that usually belong to separate occupations.
In any of these situations, DOL tends to look for a "business necessity" argument in the course of the audit: The employer must provide enough specific information about its business, along with supporting evidence, to create a context in which the questioned requirement becomes clearly reasonable.
In addition, since the labor certification rules require the employer to offer the job under the minimum qualifications, any experience the sponsored worker has acquired on the job doesn't count. Experience with the same employer but in a substantially different position, however, can count. Thus, if the sponsored worker currently works for the sponsoring employer, as is often the case, DOL might audit to make sure that any of the sponsored worker's qualifying work experience with the present employer was acquired in a position that was substantially different from the one to be certified.
Then, too, because DOL intends to certify only jobs that have genuinely been held open to U.S. workers, a sponsored worker's ownership interest in the sponsoring company will almost certainly draw an audit, as will a close family relationship between an owner and a sponsored worker.
In truth, almost any aspect of the job offered or the sponsored employee's background might come in for further scrutiny through an audit. New triggers could emerge as common at any time.
For more information, see Employers Sponsoring or Hiring Immigrant Workers.