Updates from the DOL Regarding the PERM Process — Insights for Employers
For many employers who wish to sponsor a foreign national on an employment basis, they must take steps to establish that there are no willing, qualified, and able U.S. workers available for the position, and that the foreign national will be paid the prevailing wage for the job. This portion of employment-based permanent immigration is handled by the Department of Labor (DOL) and is called PERM labor certification. In the last fiscal year, DOL adjudicated 89,151 PERM cases, an increase of 17% in the number of cases filed. In late February, DOL held a stakeholders meeting to discuss the labor certification process. The resulting report contained three issues that employers will want to consider when pursuing a PERM application: potential fees, job titles, and skill experience.
Perhaps most disheartening about the report is the indication that DOL is considering instituting fees for the PERM process. Today, filing a prevailing wage request and a labor certification is free. But, due to a lack of funding to address the growing number of cases and backlogged audits, DOL is looking for filing fees to cover those costs and it is looking to employers. As an example of the need for increased funding, DOL reported that prevailing wage determinations, the first step in the PERM process, now take longer than 60 days to reach a determination due to a lack of staffing and funding. While there was no indication when filing fees would be implemented, they are on the horizon.
Another issue mentioned in the report is the job title of the offered position. Employers often have their own ideas about how they want to title a position, what experience will be required, where and how they want to recruit, and how much the salary will be. These ideas rarely align with DOL’s expectations, especially the job title and salary. For example, the DOL report confirmed that positions with words like “Senior,” “Chief,” or “Journeyman” in the title will merit a higher salary, often $8,000 to $12,000 more than expected, even if the position is entry-level. Employers should be mindful of this before adding arbitrary titles to entry-level positions because it will make a difference in DOL’s salary assignment.
Also, when an employer is recruiting for a position that requires three years of experience and a specific skill (like C++ programming), they need to be sure that their intended foreign worker has both three years of experience and three years of that specific skill. DOL has been issuing denials over imputed quantification of the specific skill. DOL acknowledged this practice in the report and did not express any desire to change. Likewise, DOL has been unkind to employers who describe the salary as “competitive,” “negotiable,” or “depends on experience,” or who fail to include any offered housing in the advertising language.
The PERM process is unforgiving, but if employers have a better idea of what to expect, and how to align their business needs with DOL regulations, chances of a successful PERM filing increase dramatically. This is best accomplished when employers are educated about the basics of PERM applications and work with their attorneys.