Common Issues in PERM

By N.M. Gehi, Esq.

The Program Electronic Review Management (PERM) process is a step in securing employment-based immigration for foreign workers in the United States. Managed by the U.S. Department of Labor (DOL), PERM is designed to ensure that U.S. workers are not adversely affected by foreign labor entering the workforce. Through the PERM process, an employer must demonstrate that they have made good-faith efforts to recruit U.S. workers before hiring a foreign worker for a permanent position.?

The importance of PERM in employment-based immigration cannot be overstated. It is a fundamental prerequisite for obtaining a green card through employer sponsorship in categories such as EB-2 (for professionals with advanced degrees) and EB-3 (for skilled workers). A successful PERM application is the first step in a lengthy and often complex immigration journey, making it essential to understand and navigate the process correctly.?

This article aims to highlight some of the common issues that both employers and employees face during the PERM process. From job descriptions to recruitment efforts and documentation, there are several challenges that can lead to delays, audits, or denials if not carefully addressed. By identifying these issues and offering practical solutions, this article will help both employers and employees better manage the PERM labor certification process.?

Issue 1: Incorrect Job Descriptions?

One of the components of the PERM process is the job description. The U.S. Department of Labor (DOL) requires employers to provide a detailed and accurate description of the position for which they are sponsoring a foreign worker. This description helps determine whether U.S. workers are available to fill the position and ensures the job meets the required qualifications for the immigration category.?

The job description must include:?

• Job title: The title should accurately reflect the role, match industry standards, and describe the specific duties required for the position.?

• Job duties: A detailed list of the tasks the employee will perform, which should align with the job title and the qualifications needed.?

• Minimum qualifications: The education, experience, and skills required for the position, which should not be set higher than necessary to perform the job.?

Common Mistakes In Job Descriptions?

• Overly Broad or Vague Job Titles: Employers sometimes use generic titles like "Manager" or "Specialist," which can be too broad to clearly define the role. Vague titles make it difficult for the DOL to assess whether U.S. workers are available for the position or if the role matches the immigration category.?

• Misalignment with Required Skills and Qualifications: A job description that requires qualifications beyond what is necessary for the role can trigger issues. For example, if the job requires an advanced degree when a bachelor’s degree suffices, it may lead to unnecessary complications.??

An incorrect or unclear job description can lead to:?

• Delays: The DOL may request additional information or clarification, which can slow down the process.?

• Audits: If the job description is not specific enough or doesn’t match industry standards, it could trigger an audit, where the employer is required to provide more detailed documentation.?

• Denial: If the job description is found to be inconsistent with the position's actual duties or qualifications, the PERM application may be denied outright.?

Issue 2: Incomplete or Inaccurate Recruitment Efforts?

As part of the PERM process, employers must demonstrate that they have made a good faith effort to recruit U.S. workers for the position before seeking to hire a foreign worker. This requirement ensures that U.S. workers are not being displaced by foreign labor and that employers have taken adequate steps to find qualified candidates from within the U.S. labor market.?

The U.S. Department of Labor (DOL) mandates that employers' complete specific recruitment activities to prove that no qualified U.S. workers are available for the position. These recruitment efforts must be documented thoroughly and meet the following criteria:?

• Advertising the job in multiple appropriate venues?

• Conducting recruitment for a minimum of 30 days?

• Documenting all efforts, including responses to applications and reasons for rejecting U.S. candidates?

Common Issues in Recruitment Efforts?

• Failure to Properly Advertise the Position: One of the most frequent mistakes is not adhering to the required recruitment methods. For example, the job might not be posted in the appropriate outlets, such as in newspapers, on state workforce agency websites, or through other mandated channels. If the position isn’t properly advertised or posted in the required media, the DOL may reject the application.?

• Insufficient Proof of Recruitment Methods: Employers need to provide detailed records of their recruitment efforts, including copies of job postings, emails, and applicant resumes. Inadequate documentation—such as missing proof of where and when the job was advertised or failure to retain application responses—can lead to issues with the application.?

• Non-Compliance with Recruitment Timelines: The DOL requires that recruitment activities be conducted within a specific time frame (at least 30 days). If the employer misses deadlines or fails to conduct the recruitment within the required window, it can lead to the rejection of the PERM application.?

Consequences of Inadequate Recruitment Efforts?

• Delays: If the DOL finds that the recruitment efforts were incomplete or improperly documented, the application may be delayed as the employer is asked to provide additional evidence or correct the recruitment records.?

• Audits: Insufficient recruitment proof can trigger an audit. In an audit, the employer must provide more detailed records or explanations of the recruitment process, which can significantly delay the overall process.?

• Denial: In cases where the recruitment efforts are deemed inadequate or non-compliant, the PERM application may be denied. This may prevent the foreign worker from moving forward with the immigration process and force the employer to start over with a new recruitment campaign.?

Issue 3: Employer and Employee Documentation Issues?

In the PERM process, both the employer and employee must provide a variety of documents to ensure compliance with the U.S. Department of Labor (DOL) regulations. Accurate and complete documentation is essential to prevent delays, audits, or denials of the PERM application.?

The DOL requires several important documents to process a PERM application, including:?

• ETA Form 9089: The primary application form used to submit the job offer, recruitment efforts, and the qualifications of both the employer and the employee.?

• Prevailing Wage Determination: A document that establishes the minimum wage the employer must offer for the job based on the geographic area and job type.?

• Recruitment Records: Documentation of the employer's recruitment efforts, including job postings, advertisements, and responses from applicants.?

• Employee’s Qualifications: Documents showing that the employee meets the minimum qualifications for the position (e.g., educational degrees, work experience, and certifications).?

Common Documentation Issues?

• Incomplete Forms: One of the most common mistakes is submitting incomplete forms, particularly the ETA Form 9089. If the form is not filled out properly, such as missing essential information about the job, qualifications, or recruitment efforts, it can delay the process. The DOL may return the application or request clarification, leading to unnecessary setbacks.?

• Missing or Inconsistent Information: Inconsistencies or missing data can raise red flags during the review process. For example, if the job description on the application does not match the details provided in the recruitment records or if the employee’s qualifications (such as education or experience) are inconsistent with the information provided in other documents, it may result in an audit or denial.?

• Issues with Employee’s Qualifications or Experience Not Aligning with Job Requirements: If there is a mismatch between the employee’s qualifications or experience and the job’s requirements, the DOL may reject the application. For example, if an employee’s resume shows a different degree than what is required for the position or if their experience does not align with the job duties, the DOL may find that the foreign worker is not truly qualified for the role.?

Consequences of Documentation Issues?

• Delays: Missing or incomplete documentation will cause delays as the employer must submit corrected or additional paperwork. This can significantly slow down the PERM process and may even require the application to be resubmitted.?

• Audits: The DOL may trigger an audit if documentation is unclear or inconsistent. During an audit, the employer will need to provide additional records or explanations, which can prolong the process and create added administrative burdens.?

• Denial: Inconsistent or incorrect documentation can lead to the outright denial of the PERM application. If key documents are missing or incorrect, the application may be rejected, and the employer would have to begin the process again from scratch.?

Issue 4: Prevailing Wage Determination Problems?

The Prevailing Wage Determination (PWD) is an element of the PERM process. It ensures that foreign workers are not paid less than the wages typically offered for similar positions in the same geographic area. The U.S. Department of Labor (DOL) requires employers to obtain a prevailing wage before they can submit a PERM application. The correct PWD helps protect both U.S. workers and foreign workers by ensuring fair wages are offered.?

The Prevailing Wage Determination establishes the minimum salary the employer must offer the foreign worker based on the job's geographic location, industry standards, and the specific requirements of the job. The DOL uses this wage data to ensure that hiring a foreign worker will not depress wages or harm the U.S. labor market.?

An accurate PWD is essential for the integrity of the PERM process. If an employer offers a wage that is too low, or if the PWD is incorrect, the application may be delayed or denied.?

Common Issues In Prevailing Wage Determination??

• Incorrect Wage Data Submitted by Employer: One of the most common issues occurs when the employer submits incorrect or outdated wage data to the DOL. This may happen if the employer uses incorrect wage surveys, fails to account for the correct geographic location, or does not take into consideration job-specific wage requirements. Incorrect wage data can lead to a lower-than-required prevailing wage, which can cause significant problems in the PERM process.?

• Discrepancy Between Job Requirements and Wage Level: The wage level assigned by the DOL is based on the job requirements and the complexity of the position. If the employer lists qualifications or job duties that are too low for the wage level requested, this discrepancy may lead the DOL to question the validity of the wage determination. For example, if an employer claims the job requires a high level of education and experience but applies for a wage level that reflects an entry-level position, the DOL may challenge the application.?

Impact of Wage Determination Issues on the PERM Process?

• Delays: If the prevailing wage is incorrect or disputed, the DOL may request additional information or adjustments to the wage data, leading to delays in the PERM process. This could prolong the entire green card application process for the foreign worker.?

• Audits: Wage determination discrepancies are a common trigger for audits. If the employer’s wage submission does not align with the DOL's expectations based on the job description, the DOL may audit the PERM application, asking the employer to clarify the wage offered or provide additional documentation about the job duties and the market rate for the position.?

• Denial: If the employer fails to address the prevailing wage issues satisfactorily or continues to offer a wage that does not meet the DOL’s standards, the PERM application may be denied. A denied application can halt the green card process and force the employer to reapply, potentially wasting time and resources.?

Issue 5: Audit Triggers and Responses?

A PERM audit occurs when the U.S. Department of Labor (DOL) raises concerns about the submitted application or requires additional information to verify compliance with immigration laws. While audits are a normal part of the PERM process, they can delay the approval and require significant effort to address. Understanding what triggers an audit and how to respond is essential for employers seeking to navigate the process smoothly.?

There are several reasons why a PERM application may be selected for an audit. These audits are typically triggered by discrepancies, missing information, or random selection. Common audit triggers include:?

• Inconsistencies in Job Descriptions or Qualifications: If the job duties or qualifications listed in the application don't match the requirements of the position or the wage offered, the DOL may flag the application for audit.?

• Recruitment Issues: The DOL closely scrutinizes recruitment efforts. If the employer’s recruitment process appears incomplete, improperly documented, or fails to meet regulatory standards, an audit may be initiated.?

• Prevailing Wage Concerns: If there are issues with the prevailing wage determination, such as discrepancies between the offered wage and the position’s requirements, an audit may be triggered.?

• Employee’s Qualifications: Discrepancies between the employee’s qualifications or resume and the job requirements listed in the application may lead to an audit.?

• Random Selection: Occasionally, applications are selected for audit at random as part of the DOL’s quality control process.?

Common Audit Issues?

Once a PERM application is audited, employers must provide additional information and documentation. Common audit issues include:?

• Inadequate or Untimely Responses to Audit Requests: Failing to respond to an audit request within the specified timeframe can result in a denial of the application. The DOL typically gives employers 30 days to submit the requested documentation. Employers who miss this deadline may face delays or even a permanent denial of the PERM application.?

• Incomplete Documentation in Audit Submissions: During an audit, employers must submit detailed documentation of recruitment efforts, job descriptions, and wage determinations. Submitting incomplete or insufficient evidence (e.g., missing job postings, recruitment records, or applicant responses) can weaken the case and may lead to further delays or denial.?

Issue 6: Timing and Deadlines?

The PERM process is heavily regulated by strict timelines, and meeting these deadlines is important for ensuring the application proceeds smoothly. Failure to adhere to deadlines can result in delays, audits, or even denials of the application. Employers must carefully track and manage deadlines throughout each stage of the process to avoid complications.?

The PERM labor certification process has several deadlines that employers must meet, including:?

• Recruitment Period: Before filing the PERM application, employers must conduct recruitment efforts to demonstrate that there are no qualified U.S. workers available for the job. The recruitment period must last at least 30 days and include specific forms of advertising, such as newspaper ads and online job postings.?

• Filing the Application: The employer must file the ETA Form 9089 within 180 days of receiving the Prevailing Wage Determination (PWD) from the Department of Labor. Failing to file within this window can result in having to request a new PWD.?

• Audit Responses: If a PERM application is audited, the employer typically has 30 days to respond with the requested documentation. Missing this deadline can lead to the denial of the application.?

• Reconsideration Requests: If a PERM application is denied, the employer may request reconsideration. However, this must be done within 30 days of the denial notice.?

Common Timing Issues In PERM?

• Delay in Recruitment or Filing Deadlines: Recruitment efforts must be completed within a specified period, and the employer must file the PERM application within 180 days of obtaining the prevailing wage determination. If the recruitment is delayed or if the application is not filed within the allotted time, the process must be restarted. Employers can lose time if recruitment ads aren’t placed early enough or if delays occur in scheduling interviews.?

• Delays in Responding to Audit Requests or Reconsideration: If the PERM application is audited, the employer must provide the requested documents within 30 days. A delay in responding or submitting incomplete documentation can cause significant delays in the process. Similarly, if the employer is seeking reconsideration after a denial, failure to file the request within 30 days can result in the dismissal of the case.?

Issue 7: Changes in Employer’s Business or Job Offer?

Changes in an employer’s business or the job offer during the PERM labor certification process can significantly impact the approval of the application. The PERM process relies on the employer’s job offer and the specific conditions outlined in the application, so any alterations to the business or job offer must be properly addressed to avoid delays or denials.?

Certain changes in the employer’s business can complicate the PERM process and may require re-submitting or updating the application. Common business changes that can impact the process include:?

• Mergers and Acquisitions: If the employer undergoes a merger or acquisition, it can affect the legal entity that is sponsoring the employee. The new business structure may require updates to the PERM application to reflect the change in the sponsoring employer.?

• Relocation of the Employer’s Business: If the business moves to a new location during the PERM process, it may change the job’s prevailing wage determination, job requirements, or recruitment process. If the job is in a different area, the employer will need to update the application to reflect the new location and potentially obtain a new prevailing wage determination.?

• Change in Employer’s Ownership or Management: Significant changes in the ownership or management structure of the employer may also trigger the need to update the PERM application, as the DOL may require documentation showing that the business remains in control of the original employer entity.?

Issues Arising When the Job Offer Changes During the PERM Process?

Apart from business changes, modifications to the job offer itself during the PERM process can cause complications. Common issues related to changes in the job offer include:?

• Changes in Job Duties: If the job description or responsibilities change during the process, the employer must ensure that the new job duties match the requirements listed in the PERM application. Significant changes to the job description can raise concerns about the accuracy and legitimacy of the original application.?

• Changes in Salary or Benefits: If the salary offered in the job offer changes after the PERM application is filed, the employer must update the application to reflect the new wage. A change in salary could affect the prevailing wage determination or lead to questions about the employer’s compliance with wage laws.?

• Location Changes: If the job is relocated or the job site changes during the process, the employer must update the application to reflect the new location. This may include obtaining a new prevailing wage determination for the new location.?

Issue 8: Disqualification Due to Employer’s Prior Violations?

An employer’s history of violations, such as past labor violations or previously denied PERM applications, can create significant challenges when filing a new PERM labor certification. The Department of Labor (DOL) closely examines an employer’s past compliance history to determine whether they are eligible to sponsor foreign workers. A history of violations can result in disqualification, delay the approval process, or even lead to the outright denial of a new PERM application.?

Common past violations that can impact future PERM applications include:?

• Labor Violations: Employers with a history of labor violations—such as failing to comply with wage laws, improperly classifying workers, or not meeting the terms of prior labor certifications—may be flagged by the DOL. This could indicate that the employer has failed to follow labor regulations or may not be trustworthy in fulfilling the terms of a labor certification.?

• Previously Denied PERM Applications: If an employer has had previous PERM applications denied, the DOL may scrutinize future applications more closely. This is especially true if the denials were due to violations such as inaccurate documentation, false information, or failure to meet recruitment requirements.?

• Inadequate Recruitment Efforts: If an employer has been found to have failed to meet recruitment standards in a previous application, this can raise concerns that they might repeat the same mistakes in future filings.?

• Failure to Pay Prevailing Wages: If an employer has been found not to be paying the prevailing wages as required by the PERM process, it can be considered a serious violation. This could affect the credibility of the employer's future applications.?

Impact on New PERM Applications?

A history of violations can negatively affect the approval of new PERM applications in the following ways:?

• Increased Scrutiny: The DOL may conduct a more in-depth review of the employer's application, leading to longer processing times. If the employer has previously violated labor regulations, the DOL might require additional documentation to ensure compliance with all requirements.?

• Higher Risk of Audits: Employers with a history of violations are more likely to face audits for future PERM applications. During an audit, the employer may be asked to provide extensive documentation about recruitment efforts, job duties, and wages, and failure to respond adequately can lead to delays or denials.?

• Disqualification from the PERM Program: In extreme cases, an employer may be disqualified from filing new PERM applications if they have a pattern of violations. This could be a temporary or permanent disqualification, depending on the severity and nature of the violations.?

• Denial of Current Application: If the DOL finds that the employer has not corrected previous violations or continues to fail in compliance, the new PERM application could be denied outright, even if the application itself is otherwise compliant.?

The PERM process can be challenging, with issues like incorrect job descriptions, recruitment errors, and past violations often causing delays or denials. Thorough preparation and attention to detail are important for a successful outcome. Employers must ensure compliance with all requirements, from job qualifications to recruitment timelines.?

At Gehi & Associates we understand the complexities of the PERM process and are here to help. If you're facing challenges or need guidance, our team can provide the support and expertise necessary to manage these hurdles and secure a smooth, successful application. Reach out today, and let us guide you through the process.?

— N.M. Gehi, Esq.

Legal Disclaimer:

The information provided in this article is for general informational purposes only and does not constitute legal advice. While efforts have been made to ensure the accuracy of the information, immigration laws and policies, including those governing the PERM program, are subject to change. Readers are advised to consult with a qualified immigration attorney or legal professional for advice specific to their individual circumstances. Gehi & Associates does not assume responsibility for any actions taken based on the information provided in this article. The receipt or use of this information does not create an attorney-client relationship.