Employer's PERM Recruitment Responsibilities When Hiring Nonprofessional Workers

For most foreign workers, the first step to obtaining a green card to find a U.S.employer to offer them a job, and for the employer to complete a Labor Certification application (“PERM”) on their behalf. This job offer will be either a professional occupation (an occupation that requires at least a bachelor’s degree) or a nonprofessional occupation (which does not require a bachelor’s degree).

It is important to correctly classify an occupation as professional or nonprofessional, because the law mandates different PERM recruitment requirements for each. If the employer conducts nonprofessional recruitment and the U.S. Department of Labor (DOL) thinks it should have conducted professional recruitment, the employer will likely have to start the whole PERM over again, wasting both time and money.

This article explains the PERM requirements for nonprofessional occupations. (See  Employer Recruitment Requirements Under PERM  for information on PERM recruitment for professional occupations).

Determining Whether the Job is Professional or Nonprofessional

When the PERM process began in 2005, the DOL created a  List of Professional Occupations. (See Appendix A, beginning on numbered page 77377 of the regulation.) The list includes occupations that obviously require at least a bachelor’s degree such as lawyers, surgeons, and psychologists. However, the list also includes occupations that you may not know require a bachelor’s degree, such as librarians and curators.

The DOL hasn’t updated the list since 2005 and the list is not all-inclusive, meaning that occupations  not  on the list can still qualify as professional occupations. If the occupation is not on the list, it is the employer’s responsibility to decide if a bachelor’s degree is required to perform the position’s job duties. If so, the occupation is professional; if not, the occupation is nonprofessional. (Remember that the DOL can disagree with the employer’s decision and require the employer to conduct professional recruitment. It is highly recommended that employers consult an immigration attorney when making this determination.)

The Job Is a Nonprofessional Occupation – Now What?

The employer begins the PERM process by filing a prevailing wage request with the DOL. The “prevailing wage” is the average wage paid to an employee working in a particular occupation in a specific location (so the prevailing wage for the same position varies from location to location). The law requires employers to pay foreign workers at least the prevailing wage.

The employer electronically submits the wage request on the ETA Form 9141 on the DOL’s website. The ETA Form 9141 provides the DOL with information about the position’s job duties, worksite location, hours, and so forth.  As of late 2016, the DOL has been taking four months to issue wage determinations.

After the employer receives the wage, the employer places the job advertisements. The ads don't need to include every detail about the position. The PERM regulations require the advertisements to name the employer, direct job applicants on how to send resumes to the employer, provide a sufficiently detailed description of the job to inform applicants of the duties, and indicate the worksite area(s) so applicants will know where they would need to live in order to fill the job.

For nonprofessional occupations, only three advertisements are required. The employer posts one ad—called the “job order”—on the state’s workforce agency website. For instance, if the job worksite is in Virginia, the employer places the ad on the Virginia state workforce agency website. Each state’s website is different, and employers can contact the specific agency for assistance with placing the advertisement. The job order must appear on the website for 30 consecutive days (weekends count).

The other two ads must be placed on two different Sundays in the major newspaper in the area of intended employment. (If the job worksite is in a rural area that does not have a newspaper with a Sunday edition, the employer should use the newspaper with the widest circulation in that area.)

Employers must interview applicants who respond to these ads. For information on how to do so, see  Employers' Responsibilities When Reviewing Resumes for PERM.

Along with these three ads, the employer must post a notice that it is filing a PERM. The notice of filing is posted at the worksite location for ten consecutive business days (weekends do not count unless the employer can show it is open for business on weekends). This notice is not another advertisement. Its purpose is to inform the employer’s current workers about the PERM. The notice must contain the employer’s name, job title, duties, requirements, job location, wage (which complies with the prevailing wage requirement), an attestation that it was posted for ten business 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: Certifying Officer, United States Department of Labor, Employment and Training Administration, Atlanta National Processing Center, Harris Tower, 233 Peachtree Street, NE, Suite 410, Atlanta, GA 30303.”

Also, if the employer has electronic or printed in-house media, (such as a company-wide newsletter), the employer must post the notice of filing in this media, using its normal procedures for notifying employees of job opportunities.

After the employer takes the notice down, it must make a notation on the notice of how many responses it received to the notice.

If there is a collective bargaining representative for the occupation, the employer provides the representative with the notice of filing, and doesn’t have to post the notice at the worksite location.

Note that a number of PERMs for nonprofessionals are for workers that perform duties only at the employer’s private household, such as nannies or gardeners. In the case of a private household, the employer is required to post a notice of filing only if the household employs one or more U.S. workers at the time the PERM application is filed.

The employer is not required to run the ads and post the notice of filing at the same time, but it is usually recommended that they do, because they cannot file the PERM application (ETA Form 9089) until 30 days after the last advertisement or the notice of filing expires. Along with this mandatory 30-day waiting period, none of the ads or the notice of filing can be older than 180 days at the time of filing the ETA Form 9089.

For example, let's say an employer places a job order on the Virginia state workforce agency’s website from September 1, 2016 through October 1, 2016. The employer places the Sunday advertisements on September 1, 2016, and September 8, 2016. The employer places the notice of filing from September 10, 2016 through September 21, 2016. Due to the mandatory 30-day waiting period, which begins to run after the job order expires, the earliest date the employer can file the ETA Form 9089 is November 1, 2016.

After the DOL approves the ETA Form 9089, the employer can move on to the next step in the green card process and file the I-140 Petition for the worker. See  Filling Out Form I-140 to Sponsor an Immigrant Worker.

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