WHAT IS PERM?

Federal law permits U.S. businesses to hire foreign workers to work in full-time, permanent positions that cannot be adequately filled by the existing U.S. workforce. “PERM” is an acronym for the Department of Labor’s (“DOL”) online filing system for this type of application and, colloquially, it is used to describe the entire process.

WHAT ARE THE PROCESSES INVOLVED?

We have a whole page devoted to that if you click here. That is usually enough information to get a feel for what we are doing, but if you want more details or samples of the various types of advertisements, applications, and so on, please ask us and we can give you anything from a one page color-coded process chart to our 30 page employee training manual on the PERM process.

HOW MUCH DOES IT COST?

The rule is that the employer must cover costs connected to the Labor Certification process. However, this program can be highly scalable because the most significant cost to the employer is fixed, meaning there’s often not a significant cost difference in hiring one worker or 100 workers. The employer must pay for the newspaper ad, which varies from about $200 to $2,000 or more based on location (most of the U.S. will be $500 to $1,000 or so). The employer must pay any of its own legal costs connected to the DOL application process and may not seek reimbursement from candidates. Thus, this program is most cost-efficient for employers hiring perhaps 10 or more employees at once to fill the same less skilled or entry level role. When it comes to costs relating to immigration applications, many of these can be borne by the workers (for example, fees connected to visa processing including the Department of State background check).

HOW LONG DOES IT TAKE?

Realistically, an employer is probably looking at about a year before anyone is in place. The processes mostly have to be done in order and there are no shortcuts. Government processing times have increased due to budget cuts and increased interest in the program. We will do our best to keep everyone on track, but it is a long process that really will only be tolerable for an employer facing chronic staffing issues.

HOW MANY PEOPLE CAN I HIRE BASED ON MY RECRUITMENT?

There is not a fixed maximum number of employees an employer may hire based on one round of recruitment. However, an employer must certify it has the ability to pay everyone it is hiring. We can work closely with employers to establish its needs and its theoretical “maximum” number of hires.

WHo picks/Hires the Overseas Candidates? 

You do. While RLG has a vast network of candidates we can refer or introduce to you and is more than happy to help in setting up Zoom or Face Time interviews, the ultimately hiring decisions are the employer’s alone and it is not something we meddle into.

HOW do i know the Candidates can do the job? 

Whatever parameters an employer may set for its U.S. workforce and are reasonably connected to the job duties, we can set on the overseas candidates. For some jobs, this may be willingness to work certain shifts or take on overtime. For others, it may be physical abilities or, in the case of many production environments where safety is a concern, English language skills. We work with employers in several industries, so people also self-select and orient themselves towards what is a stronger fit for their skills and capabilities. For example, someone who has been a stay-at-home mom for several years may wait to apply until she sees a vacancy with a home health care employer whereas a young, single man may be looking for a place with a food production company that offers more physical work, but the ability to make good money through overtime. Plus, the employer can interview everyone to assess fit as mentioned above. For all these reasons, we are confident the candidates an employer ultimately selects will be great fits.

HOW MUCH DO I HAVE TO PAY THE OVERSEAS CANDIDATES?

Employers cannot use this program to adversely impact wages of U.S. workers in similar positions, so incoming workers must be paid the greater of the Prevailing Wage determined by the Department of Labor or the employer’s customary wage for employees in that particular role (and skill level, if applicable). The attorney will provide the DOL with the information needed to make that determination - called a “Prevailing Wage Determination” or “PWD” - and they will respond with necessary wage rate for that particular job in your area. The greater of that amount or the amount the employer customarily pays similarly-situated employees is what must be paid to the overseas workers being hired. For example, if no skills or experience are required for a position at which the employer customarily pays $12.00 per hour and the PWD comes back at $11.55, the employer still must offer the foreign worker the wage of $12.00 per hour. 

IF I CANNOT SAVE MONEY ON WAGES AND I HAVE TO COVER OTHER COSTS INVOLVED WITH OBTAINING THE LC, HOW DOES THIS MAKE SENSE FOR MY BUSINESS?

It may not. This program is available to any U.S. employer, but is used almost entirely by either employers needing to fill positions that are either quite high-skill or low-skill. If your business is able to regularly hire and retain employees, then you do not need this program. On the other hand, if you are an employer facing chronic labor shortages or constant turnover, this program can be invaluable. Like we said above, the biggest types of roles we have helped employers fill via this program are things like food production staff, janitors, home health aides, hotel housekeepers (pre-COVID at least), and things like that – industries that need lots of manpower and employees doing work that cannot be automated and requires little by way of professional skills or education.

HOW LONG WILL THE WORKERS STAY WITH the employer?

The positions must be permanent, full-time ones with no fixed end date. You may employ them as long as you like and as long as business conditions allow for it. Both sides must enter into that arrangement in good faith. In practice, the DOL will not dispute the good faith arrangement if the employee remains with the company for at least one year. 

WHERE DO THE WORKERS COME FROM?

Employers can file for a Labor Certification (“LC”) from anywhere, but there are some practical considerations here as well. In reality, people from high quality-of-life countries are less interested in uprooting themselves and migrating to the U.S. because they are happy where they are. Thus, we have few workers from Western Europe, for example, interested in this program. On the other hand, moving to the U.S. is a fairly costly endeavor, so we also do not see workers coming from truly developing and evolving nations either. Most of the workers we see who are interested in this program are middle- to professional class individuals in countries with middling economies. In our experience, these have been: Philippines, Bangladesh, and Sri Lanka as the largest, alongside more modest interest from Thailand, Vietnam, Japan, Brazil, Pakistan, the Gulf Region and Western Africa.

We will also explain why China and India, two countries known for significant immigration to the U.S. are missing from our list above. Within the immigration system, there are rules that say people born in any one particular country cannot take up more than a certain percentage of all visas given. For high population countries, this results in a waiting queue of people with approved cases who cannot be awarded visas (and thus cannot come and begin working). For example, in this visa category, China and India now have backlogs of several years. Most employers are annoyed enough by the roughly one year wait to get the workers and are not inclined to wait 10 years or more for someone from one of those countries. Philippines also had a modest backlog in recent years, though it is gone now (and was only about 4 additional months when it was in place). 

I AM LOOKING AT THESE PEOPLE’S RESUMES AND THEY SEEM A LITTLE DIFFERENT THAN I’M USED TO SEEING FOR THIS TYPE OF ROLE. HOW COME? WHY ARE THEY INTERESTED IN THIS JOB?

Like anyone, the prospective employees have multiple objectives. On one hand, they want to work and do a good job. However, they also are interested in moving to (or remaining in) the U.S. and being able to do so on a long-term status. Quite simply, the quality-of-life here is better than it is in the countries from which they are moving. There are better public education options for their children, increased access to healthcare, and a panoply of other comparative advantages offered by living in the U.S. The desire to stay here long-term from the workers also works in the employer’s favor, because they know they must follow program rules (and hold on to their jobs) in order for this to actually work. Certainly, we do not suggest this is a trait of which employers should take advantage, but it is an added assurance for employers that the workers are committed to doing the jobs for which they are hired.

In addition, we find a number of interested employees who have already left their birth country and are working on temporary visas in Gulf Region countries. In the last 20 years, places like Dubai, Abu Dhabi, Doha, Riyadh, Jeddah, and others in the Gulf Region have developed quickly. One of the ways they did this is by importing a variety of workers from other places – construction workers and truckers from southeast Asia and nurses from Philippines, for example. Those workers are on now on renewable visas, but two things are happening: first, they face uncertainty because they do not have a permanent, stable solution and, second, several of these countries (Saudi Arabia most prominently) are cutting the number of foreign workers they will allow to remain in attempts to curtail domestic unemployment. Thus, right now, there is considerable interest in finding a long-term immigration solution for temporary workers in the Gulf Region and the PERM/EB-3 program represent a “win-win” solution for them and the U.S. employer.

HOW DO I DO A BACKGROUND CHECK ON THE EMPLOYEES IF THEY HAVE NO REAL HISTORY IN THE U.S.?

The U.S Department of State (“DOS”) does a significant background check on all workers and their families as part of the visa process. This involves running their name and information against the equivalent of the FBI’s database in their home country and every country in which they have lived since age 16. They are required to provide clearances from police or federal agencies and certify they have not done anything that would make them inadmissible under U.S. immigration laws. The individual backgrounds of each worker (and family member) are checked closely by the U.S. government, so employers can be assured that they would pass any background check that a U.S. employer would run.

I KEEP SEEING THE WORD “SPONSOR” ON VARIOUS DOCUMENTS, WHAT DOES IT MEAN IN THIS CONTEXT? 

There are a few words that come up in the PERM process that have a specific legal meaning here that is somewhat different from what you would find in the dictionary or elsewhere in the world. “Audit” is one example. “Sponsor” is another one. The way the U.S. immigration system is set up requires pretty much anyone who wants to immigrate have a sponsor. While there are a few exceptions (asylum, significant investors), nearly all people who will immigrate to the U.S. do so based upon a tie here. That tie might be a family member or it could be an employer - either is called a “sponsor” for immigration purposes. The sponsor is what connects them to a reason to migrate here, whether to reunite with family or to perform a job necessary to the U.S. economy. Technically, there is a financial requirement here for both family sponsors and employer sponsors. However, in the employment context, it just means the employer needs to pay them what is detailed in PERM application. There are NOT additional financial requirements on the employer, such as paying for travel or housing, which exist in some other categories. The employer simply must pay them for their work, which obviously it would do for any employee.

I CURRENTLY HAVE WORKERS WITH NON-PERMANENT STATUSES IN THE U.S., CAN WE FILE LC APPLICATIONS FOR THEM?

Probably. Many employers have one or more current employees in Temporary Protected Status (“TPS”) or seeking asylum in the U.S. Those people have valid work authorization, but may lack a pathway to remain in the U.S. in the longer term. In many cases, the employer can file for an LC for them and they can continue to remain in the company’s employment while the applications are pending. We are happy to discuss costs of this process with you and, if appropriate, the employee. However, we MUST be careful in these cases, especially with TPS employees, and determine how and when they arrived to the U.S. before proceeding with any applications because there may be additional complications or restrictions (and, to make things even more complicated, the federal court circuits are split on how to resolve some of these issues, so there are different precedents in different areas). Please bring any such matter to our attention promptly for further review.

THIS SEEMS TOO GOOD TO BE TRUE, WHAT COULD GO WRONG?

We like to compare this process to driving a car. If you closely follow the rules, obey the speed limit, and so on, there is little risk of difficulty or inconvenience. 

We will work closely with you to make sure everything here is done in perfect compliance with the law. However, we will discuss a few examples of how this process could go off track. If we file a PERM for someone and the DOL believes we did not adequately test the domestic labor market in good faith (like failing to promptly contact domestic applicants), they can require an employer to undergo “supervised recruitment” where you have to do another round of ads and basically the DOL collects responses and ensure the employer contacts them. Later on, if the DOL believes workers are not doing the jobs for which they are hired, they may conduct a site visit and check in with the employer. Lastly, if the DOL concludes some sort of massive fraud is afoot, they can bar the employer (and lawyer, if they conclude he or she is involved) from the PERM program for up to a few years or even file criminal charges in truly extreme cases (like hiring people to do jobs that do not actually exist in exchange for payments from them).

We will work closely with you to ensure all these potential issues do not arise. These inconveniences or penalties are clearly avoidable with simple diligence and planning. We do not intend to let any of these ever happen to employer clients (except perhaps that a random site visit may theoretically be possible).