Our firm had an consultation with a company regarding the PERM recruitment process and as a result of the convoluted and outdated process, the employer was not able to hire a foreign national. It was extremely unfortunate because they thought she was the perfect fit for their business needs. However, because of the lengthy PERM Labor Certification process, they could not hire and train her in time. As a result, the foreign national had to plan to leave the country once her H-1B expires and back to the drawing board for the employer. This is just one example of many of how the immigration process contributes to the U.S. talent drain.
Here, we explain the convoluted process to you and why you must retain an immigration attorney from the beginning, the job description drafting process.
The PERM recruitment is a long process and could take anywhere from 6 months to a year, maybe even longer if your file has been randomly selected for audit. Under the current rules, the recruitment process must begin 30-180 days before the submission of the PERM Labor Certification application with the Department of Labor (DOL). After the submission, under the current processing time, it takes 3 months for the DOL to process your application. After the application has been approved, if you have a good immigration attorney working with you, the I-140 and its related documentary evidence should not take long to compile.
However, the I-140 wait time could be another year before the employee is able to start working for you. For this reason, we would always recommend premium processing for our employer clients to speed up the wait time to a mere 15 days. This is the only fee that can be paid by your potential employee to lessen the expenses that are associated with the immigration process.
However, if the I-140 has been pending for a year, we recommend using the H-1B extension option under AC21 (provided, of course, that the candidate had a H-1B visa before). Even if the visa is expired or the candidate had used up the 6 years limit, having a I-140 of a Labor Certification pending for 1 year will allow the candidate to work for you using her H-1B extension. Alternatively, once the I-140 is approved, the candidate can also file for the H-1B extension to work for you. For more information on the H-1B extension, which should take about a month (with premium processing), see: Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21).
Even with the H-1B extension under AC21 and the premium processing option, however, the wait time from the PWD stage until the time that the employer can hire a foreign national to work for them is still at least 5 months!
PERM Recruitment Requirements
Thirty to one hundred and eighty days prior to the filing date of the application, the employer must obtain a prevailing wage determination (PWD), using the job title and description, and begin the recruitment postings. The PWD can be obtained through a government survey, such as the Foreign Labor Certification Data Center.
The recruitment requires 2 postings in a Sunday newspaper (who even reads these anymore?) and 30 days of posting in the State Work Agency (SWA) Job Bank. In Massachusetts, the job bank posting must be on Massachusetts JobQuest. Additionally, if the position is for a professional occupation, the recruitment must also take place in at least 3 of the 10 areas mentioned on Form 9089: employee referral programs, employer's website, job fairs, third-party job search websites, on-campus recruiting, trade or professional organizations, private employment firms, notice of the job opening at a campus placement office, local and ethnic newspapers, and radio and television advertisements. The specific information requires in the job postings is beyond the scope of this article.
Contacts and Interviews
During the recruitment, you must keep all records of your efforts to contact applicants. You also must interview U.S. workers who meet the minimum requirements for the position and you must document all rejections. Rejections must be for job-related reasons. As such, you cannot reject a candidate based on the lack of training, if the training can be provided on the job. You also cannot reject a candidate based on his/her distance from work, if they are willing to travel.
We understand that most of the time, the recruitment process for PERM does not align with your company's recruitment process. However, this is simply a requirement you must follow if you wish to employee a foreign national outside of his/her H-1B term. As such, we would recommend building this process into your regular recruitment process.
If your business depends on foreign nationals with advanced degrees or skills, you need a good immigration attorney to work with you from start to finish to ensure that the entire process is completed correctly, Working with an attorney can save you a lot of headache and resources in the long run. Otherwise, once you find a candidate that is a perfect fit for your business needs, it may be too late to begin PERM. Zhang-Louie, Immigration Legal Counsel consults employers on the PERM process a regular basis, contact our firm to see how you should start your recruitment.