Employers' Five Most Common PERM Mistakes

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." That involves conducting recruitment, placing advertisements for the foreign worker's prospective job, holding interviews, and then submitting the ETA Form 9089 to the U.S. Department of Labor (DOL) and attesting 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. If it's an approval, the employer can complete 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 the five most common mistakes employers make when completing the ETA Form 9089 and placing the required advertisements.

1. Failing to Double Check EVERYTHING on ETA Form 9089

Perhaps the most common mistake employers make when completing the ETA Form 9089 is not double checking that every single piece of information they've 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, unfortunately, 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 therefore 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.

2. Placing Recruiting Advertisements on the Wrong Dates

One of the great difficulties for inexperienced employers attempting to complete the PERM process is adhering to its strict rules and time frames, including for the recruitment process. One of these rules is that employers place two Sunday advertisements in the newspaper of general circulation in the area advising people 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, 2023 and places the second ad on Tuesday, May 22, 2023. THIS IS INCORRECT.

The employer places one advertisement on Sunday, May, 20 2023, and places the second advertisement on Sunday, May 27, 2023. THIS IS CORRECT.

3. Failing to Include the Immigrant Worker's Qualifications

The ETA Form 9089 must clearly show that the immigrant worker qualifies for the job. For example, let's say the job requirements are a bachelor's degree in civil engineering, two years of experience in road and bridge design projects, and a civil engineer license. In the "Foreign Worker Information" section of the application, the employer must include the requested information for the worker's education, experience, and licensure. Even if the employee has the required civil engineer license, if it's not included on the application, the DOL will deny the application.

4. Failing to Respond to Follow the Strict Timelines

The PERM process has strict timelines that can derail an application when not followed. For example, the prevailing wage determination must be valid when the employer starts the recruitment or submits the actual application. The internal notice must be posted for ten business days, not ten calendar days. Also, holidays that fall on business days do not count, nor do days when the business is not open, such as the Friday after Thanksgiving. The state job order must run for 30 calendar days. The recruitment also must be completed at least 30 days but not more than 180 days before submitting the application. Failure to comply with these strict timelines will doom an application.

5. Failing to Retain PERM Documentation

Employers have a lot of responsibilities in the PERM process. One 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.

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