Prior to filing the permanent labor certification application, the employer must conduct recruitment of U.S. workers for the job being offered. Recruitment is a cumbersome process and very time and process specific and advertising requirements may change based on the type of job being offered. We highly recommend you retain qualified PERM attorneys to help you with your recruitment. Incorrect recruitment can result in the denial of a labor certification application.
For purposes of recruitment, most jobs can generally be categorized as professional or non-professional occupations. Professional occupations generally require at minimum a Bachelor’s degree. There are some jobs that the DOL insists are professional occupations, and thus, the recruitment must conform to the professional occupation standards. The recruitment process will vary depending on whether the occupation is professional or non-professional. All petitioning employers (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest to having conducted the recruitment prior to filing the application. Petitioning employers using the regular PERM process must conduct recruitment no more than 180 days but no less than 30 days prior to the date of submitting the PERM application.
The following mandatory recruitment activities are required for all applications involving professional and non-professional occupations which are not filed for Schedule A positions or Special Handling:
The employer must place a job order with the local SWA for a period of 30 days. While the start and end dates of the job order entered on the application will serve as documentation of this step, it is still advisable to maintain dated printouts from the SWA’s job posting website as part of an employer’s PERM documents.
The employer must place an advertisement in a newspaper of general circulation on two different Sundays. If the job offer requires experience and an advanced degree, the employer may place an advertisement in an appropriate national professional journal in lieu of one of the Sunday advertisements.
If the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in that area. This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.
The employer must post an internal job posting (also called a notice of filing) with all DOL required information for a period of 10 consecutive business days. If the position is a union position, the employer must give proper notice to the bargaining representative. The notice of filing must contain the same information as the advertisement content. The internal job posting must list the wage offered for a position filed under the regular PERM process (even if this information is not in the advertisements). An internal job posting must state the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; state that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; and provide the address of the appropriate Certifying Officer.
If the position offered is a professional position (all EB-2 cases and most EB-3 cases that require a degree), the PERM regulation requires the employer to post the job in at least three of the following forums during the recruitment period mentioned above (except one activity may be within 30 days prior to the date of submission):
The job advertisement does not need to include every single minute detail about the job duties. However, it must be thorough, and include the following information: name of the employer, address where applicants should send resumes to the employer, employer contact information, and a description of the job with enough details that it is clear what the job is for. A wage is not required to be listed in advertisements for PERM, but if it is then the listed wage may not be lower than the Prevailing Wage Determination. Advertisements must not contain additional job requirements not normally required for the position (unless there is a demonstrated business need) and cannot contain wages or terms of employment that are less favorable than those being offered to the alien beneficiary.
Once the job has been advertised, the employer must interview U.S. worker applicants that have met the minimum requirements for the position. If the employer rejects U.S. workers that meet the minimum qualifications, he must document why in his recruitment report. The employer must have a lawful, job-related reason for rejecting a minimally qualified U.S. worker, and include that reason in the recruitment report.
Recruitment must be performed during the 180 days prior to filing the labor certification application, but must also be completed 30 days before filing the application. If the PERM is filed for a professional position that must perform 3 additional recruitment steps then ONE of these additional steps may take place less than 30 days before submitting the application. The counting of days is strictly defined by the U.S. Code of Federal Regulations. For the DOL’s FAQ regarding timeline guidance, please click here. We highly recommend you consult with an experienced attorney, such as Z&A, prior to conducting recruitment. Errors in recruitment cannot be cured after the labor certification application has been filed.
The requirements for different postings vary as the DOL has developed a very complicated practice during years of the Labor Certification Process. Though the supporting documents are not submitted at the time of online filing, the employer must keep a full set of recruitment documentation for at least five years from the date of submission. The DOL may begin an audit and investigation at any time during this 5 year period.
Please note, for a tenure-tracked teaching position at a university or college, if the position is offered through a competitive selection process, most of the above requirements may be waived. This is referred to as Special Handling PERM. For details of the Special Handling PERM process for university or college teaching positions, please click here.
PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.
(Updated 10/1/2012 by AD)
For more information on PERM Labor Certification, please refer to the following links:
PERM General Issues