Fortunately, the United States remains the most attractive country for foreign-born workers looking for labor opportunities abroad. At the end of 2021, there were almost 28 million foreign-born workers in the U.S., making up approximately 17% of the total workforce. However, to tackle the labor shortage, it is essential to strengthen existing pathways for legal workers to invigorate the economy, benefiting businesses, workers, and consumers alike.
The options for foreign workers to come to the United States are insufficient and, in many cases, obsolete. An alphabet soup of employment visas is available to employers wishing to hire foreign workers in the U.S. However, they each demand a unique set of requirements and prerequisites. For many American employers, a difficult barrier to overcome is the PERM Labor Certification Process.
What is PERM?
Program Electronic Review Management (PERM) is a labor certification process that many employers must go through to successfully hire foreign workers to permanently move to and work in the United States. This process is overseen by the Employment and Training Administration (ETA) within the Department of Labor (DOL). As such, employers must submit PERM applications to the ETA prior to filing their Alien Worker Immigration Petitions to U.S. Citizenship and Immigration Services (USCIS).
PERM’s functional use is two-tiered. Its primary purpose is to protect the U.S. labor market by requiring employers to establish there are “no able, qualified, and available U.S. workers who are willing to accept the permanent job offer.” Then, employers must demonstrate that hiring the foreign worker “will not adversely affect the wages and working conditions of similarly employed U.S. workers.” These various bureaucratic requirements have made PERM a difficult barrier for many employers to surmount, making it challenging to hire foreign workers, even in a time of labor shortages.
When is PERM used?
PERM is required for employers seeking to hire those who fall within the Second (EB-2) and Third (EB-3) Preference categories for employment immigration visas. It’s the first step employers hiring foreign workers under those categories must meet.
Second Preference (EB-2)
A worker who falls into the EB-2 category for employment visas is either a “member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability.” Notably, employers seeking to hire within this category can apply for a National Interest Waiver (NIW) to waive the PERM process. Typically, NIWs are requested when an employer believes that it would be in the interest of the U.S. to bring in specific foreign-born workers, such as prolific researchers and academics who have excelled in their field. USCIS then considers whether the job has enough merit and national importance, whether the employer is in a good position to advance the particular interest, and whether waiving the PERM process would be nationally beneficial.
Third Preference (EB-3)
The EB3 preference contains three subcategories:
- Skilled workers;
- Unskilled workers; and
Skilled workers are those who have at least two years of professional experience, post-secondary education, or training. Unskilled workers are those who have less than two years of the same criteria. Finally, professionals are those whose jobs require a U.S. baccalaureate or equivalent foreign degree. Each subcategory requires an employer to offer a full-time job, and beneficiaries must provide documentation showing they meet the required criteria.
The first step in initiating the PERM Labor Certification Process is to create a full-time position with a title, specific duties and prerequisites, a job location, and an address to send resumes. Then, the employer must follow two overarching steps before submitting the PERM application: a labor market test and a prevailing wage determination.
Labor Market Test
Overall, the Labor Market Test requires an employer to display a lack of sufficient, willing, available, and qualified workers already in the U.S. to perform the job. This is done by undergoing a recruiting process that tests the labor market through the following methods:
- Sending internal notifications within the employer’s organization to announce open positions and encourage current employees to apply;
- Posting at least two ads on Sunday editions in a major newspaper; and
- Placing a job order with the appropriate State Workforce Agency (SWA) for at least 30 days.
On top of the above requirements, the employer must also carry out three of the following options in listing a job announcement:
- Posting the job opening on the employer’s website;
- Announcing the position at job fairs;
- Posting the job on third-party job search websites;
- Conducting on-campus recruitment;
- Announcing the open position on trade or other professional organizations’ publications;
- Hiring private employment firms;
- Participating in employee referral programs;
- Contacting campus placement offices;
- Posting job ads in local newspapers; and
- Announcing the position in T.V. and radio ads.
This process must occur within a period of 30 to 180 days before filing the PERM application.
Prevailing Wage Determination
At this stage, employers must be able to show that hiring a foreign worker will not adversely affect the wages and working conditions of similarly-placed U.S. workers. This is done by obtaining a prevailing wage determination from the appropriate State Workforce Agency (SWA). Per the DOL, a prevailing wage rate is “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.” Thus, when an employer obtains a wage determination from an SWA, employers must offer a wage and benefits matching or similar to the prevailing wage rate.
After the application is submitted, resolutions usually take around 90 days. Once approved, a PERM labor certification is valid for 180 days, subject to revocation by the DOL on a case-by-case basis.