The most common pathway for an employer to hire a foreign worker on a permanent basis is to sponsor the employee for a Green Card. The first step in the sponsorship process is obtaining a permanent labor certification from the U.S. Department of Labor (DOL). The labor certification is obtained by filing an application through the DOL’s program electronic review management (PERM) process.
Steps in the PERM Labor Certification Process
The PERM process generally includes three major steps:
Drafting the PERM notice of filing. This initial step is where the employer sets the minimum requirements for the sponsored permanent role. Labor certifications are specific to the employer’s position rather than the foreign national employee’s particular credentials, so the employer must be careful to accurately list its minimum requirements for entry into the particular role. The PERM notice of filing is essentially a job advertisement for the position.
Prevailing wage determination. Once the notice of filing is finalized, the next step is requesting a prevailing wage determination (PWD) from the DOL. This is a required interim step within the PERM process because the DOL assigns a wage for the employer’s role based on the average wage paid to similarly employed workers in the area of intended employment. The DOL’s assignment of a prevailing wage is meant to ensure that hiring the foreign worker won’t adversely affect the wages and working conditions of similarly situated U.S. workers.
Labor market test. The labor market test, or PERM recruitment, requires that the employer post the job advertisement for the PERM role for a minimum of 30 days in multiple locations. The employer must advertise the wage for the role as the higher of the prevailing wage or the offered wage for the role. This is a required step within the PERM process because the employer must be able to demonstrate there are no qualified U.S. workers willing and available to take the PERM role.
Importance of the PERM Notice of Filing
Within the steps in the PERM process described above, drafting the PERM notice of filing—or job advertisement for the sponsored role—is arguably the most important in the lengthy process. The employer must not only determine its minimum requirements for entry into the PERM role but also address and properly reflect several additional factors that are crucial to the success of the case. This includes work location, telecommute or hybrid work benefits, offered wage or wage range, travel requirements, and supervisory authority.
These factors must also be consistently reflected in the prevailing wage request and may affect the wage level and occupational classification the DOL assigns to the role. The most notable recent changes to keep in mind when drafting the notice of filing to align with the prevailing wage determination are regarding setting primary and alternate requirements and properly listing telecommute benefits.
Alternate Requirements
The DOL’s Office of Foreign Labor Certification (OFCL) now reviews both the primary and alternate requirements and issues two prevailing wages, one for each set of requirements, and the employer must use the higher of the two.
The prevailing wage form has been revised, and the increase in the prevailing wage determination as a result can be substantial. For example, imagine a software engineer role in Denver, Colorado, with primary requirements of a Master’s degree plus two years of experience or a Bachelor’s degree plus five years of postdegree progressive experience.
Under the previous prevailing wage form, it would likely have been assigned a Level 2 Software Developers wage of $102,485. In contrast, the new version of the form results in the assignment of prevailing wage amounts for both sets of requirements, with the alternative Bachelor’s degree plus five years’ experience requirement producing a Level 4 wage of $139,984 (an increase of over $37,000).
The employer doesn’t have to pay the prevailing wage until the employee receives a Green Card, which could be years in the future, but the employer must be prepared to demonstrate its ability to pay the prevailing wage as of the date the PERM is submitted to secure an I-140 approval.
It’s important to evaluate the potential wage implications of setting alternative requirements for PERM roles with counsel in detail when drafting the notice of filing to ensure the employer is prepared to pay the higher of the two anticipated wages.
Telecommute/Hybrid Work Benefits
With the drastic increase in telecommuting and hybrid work arrangements caused by the COVID-19 pandemic, OFLC similarly clarified in July 2022 that for situations in which the employer permits telecommuting, recruitment should be conducted using the employer’s headquarters as the job location even if the remote work location is in another state.
Additionally, OFLC has stated that it recognizes telecommuting as a benefit of employment that should be included in the notice of filing and all other recruitment advertisements.
Other Key Things to Keep in Mind
It’s important to ensure the job description and minimum requirements for the PERM role are reflected consistently between the prevailing wage determination, the recruitment ads, and the PERM form. If there are discrepancies, the DOL adjudicating officer could find that the prevailing wage is invalid, that the recruitment ads don’t properly apprise U.S. workers of the job opportunity, or that the foreign national doesn’t qualify for the role—all of which could result in a PERM denial.
This is all the more important with the June 1, 2023, transition to filing PERM applications through the foreign labor application gateway (FLAG) system in which the prevailing wage determination is imported. In recent guidance regarding this new filing system, the DOL has noted that making changes to the imported prevailing wage information could result in adjudicatory delays.
The employer should think through whether there will be changes in the foreign national employee’s position, salary, or work location while the PERM process is ongoing. PERM applications are prospective in nature and can be filed for an anticipated future role. It’s important that the job duties, worksite, offered wage, and other details of the position remain consistent throughout the PERM labor certification process, and given the current lengthy processing times for prevailing wage determinations and PERM adjudication, the employer should critically assess whether it would be beneficial to structure the PERM for a future role if changes are anticipated.
Takeaway
The PERM process is lengthy and complex. To avoid delays and potential denials, it’s critical to think through the various issues described above at the outset of the process.
Consistency is key for the PERM process. Details such as telecommute benefits, supervisory authority, and travel requirements must be uniformly present in the notice of filing, the prevailing wage request, and the PERM recruitment ads. So, the more well thought out the notice of filing is at the beginning of the process, the greater the potential for success.
Sarah Bileti is an attorney with Holland & Hart LLP in Denver, Colorado. She can be reached at srbileti@hollandhart.com.