When foreign workers seek a U.S. green card through employment, they must in most cases rely on the U.S. employer that offered them a job to successfully complete the multitude of requirements associated with sponsoring them for a green card.
Typically, in order to sponsor a foreign worker, the U.S. employer must first complete the labor certification process known as "PERM." The PERM process requires the U.S. employer to conduct recruitment, place advertisements for the foreign worker's prospective job, hold interviews, and then submit the ETA Form 9089 to the U.S. Department of Labor (DOL) and attest that no qualified, willing U.S. workers are available for the position.
After reviewing the employer's ETA Form 9089, the DOL will either certify (approve) the case, or deny it. After the DOL approves the case, the employer completes the second step in the green card process, which is filing a petition on Form I-140 with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves the I-140, the foreign worker completes the third step, which is filing an application for a green card with USCIS or a U.S. consulate.
This article focuses on the first step of this process (the PERM process), and specifically explains the five most common mistakes employers make when completing the ETA Form 9089 and placing the required advertisements.
Perhaps the most common mistake employers make when completing the ETA Form 9089 is not double checking that every single piece of information they have supplied is correct. The ETA Form 9089 is submitted online on the DOL website. In order to correct any typographical errors on the form, the employer's only solution is to withdraw the application and refile it, Employers are prohibited from sending corrected ETA Form 9089s to the DOL. Sometimes, the solution of withdrawing/refiling is not possible, perhaps because advertisements have expired by the time the employer notices the mistake.
The DOL may deny ETA Form 9089s for what might seem like trivial typographical errors, such as spelling mistakes in the employer's name or the foreign worker's home address. Literally anything is fair game for the DOL.
It is of the utmost importance that employers check, double check, and recheck ALL pieces of information on the ETA Form 9089 before submitting the form to the DOL.
One of the great difficulties for inexperienced employers attempting to complete the PERM process is adhering to its strict rules and time frames. One of these rules is that employers place two Sunday advertisements in the newspaper of general circulation in the area of the job opportunity. Employers commonly make the mistake of placing one ad on a Sunday and another ad on a different day. The DOL will deny the ETA Form 9089 if the newspapers ads were not placed on two Sundays. The following example will help illustrate the dos and don'ts for the Sunday ads.
Let's say the job opportunity is located in Washington, DC. The newspaper of general circulation for this area would be the Washington Post.
The employer places one advertisement on Sunday, May 20, 2021 and places the second ad on Tuesday, May 22, 2021. THIS IS INCORRECT.
The employer places one advertisement on Sunday, May, 20, 2021, and places the second advertisement on Sunday, May 27, 2021. THIS IS CORRECT.
Another common mistake occurs when employers fail to include the foreign worker's past and present work supervisors on the ETA Form 9089. The ETA Form 9089 asks for the alien's work experience information, including name of the employer, dates of employment, duties performed, job title, skill sets/licenses used, and the phone number and name of the alien's supervisor.
For whatever reason, employers regularly forget to include the name and phone number of the alien's supervisor. The DOL will deny an ETA Form 9089 on this basis, so the employer should be sure to include these details for all of the alien's present and past work experience.
After the employer electronically submits the ETA Form 9089 to the DOL, the employer will receive an email from the DOL to the email address that the employer provided on the form. This email will contain a link to a simple questionnaire, which basically seeks to confirm that the employer knowingly filed the ETA Form 9089 and that the submission wasn't a result of a computer hacker, spam, and so forth.
The employer MUST complete this questionnaire within seven days of receiving it, or the DOL will deny the case. Once the employer completes the questionnaire, the DOL will send a confirmation email that the employer should also retain until the ETA Form 9089 is approved.
Employers have a lot of responsibilities in the PERM process. One of these that is commonly overlooked is the responsibility to retain all PERM documents at the employer's office location for a period of five years. At a minimum, employers must retain the prevailing wage determination, originals of all advertisements that were placed for the position (such as original newspapers that contain the Sunday advertisements and printouts from Web advertisements), and all of the resumes the employer received for the job opportunity. These documents must be maintained at the employer's location for a period of five years from the date of the employer's submission of the ETA Form 9089.
This is a critical responsibility that employers MUST comply with or they can face serious fines, penalties, or other consequences.