One of the most common ways for foreign workers to receive U.S. permanent residence (green cards) is by having a U.S. employer sponsor them for a permanent employment position through the Labor Certification program, also referred to as "PERM." In order to complete the PERM program, the U.S. employer must place a series of job advertisements in different venues in order to test the labor market and confirm that there are no qualified and willing U.S. workers who can perform the job duties of the position offered to the foreign worker.
The PERM program has different advertisement requirements based upon whether the offered job position is a professional occupation, which means a job that requires at least a bachelor's degree to perform the duties, or a nonprofessional occupation, which means a job that does not require a degree to perform the duties.
For the U.S. employer sponsor, it is important to know if the job position is professional or nonprofessional before beginning the PERM advertisement process. If the employer conducts the wrong type of advertisement process, the U.S. Department of Labor (DOL), the agency that reviews the PERM applications, will deny the application, resulting in the loss of significant money, time, and resources on behalf of the U.S. employer.
However, luckily for employers when the PERM system was created in 2005, the DOL helped U.S. employers by creating and publishing a list of occupations that qualify as professional. This list can be viewed here and includes job positions that most people would assume require a bachelor's degree, such as psychologists, lawyers, and surgeons, but it also includes jobs that may not seem to require a degree but that the DOL believes to have this requirement, such as museum curators and librarians.
While this list may be a helpful starting point when making the decision to classify an occupation as professional or nonprofessional, it can only go so far because the list has not been updated since 2005, and the DOL has pointedly emphasized that the list is not meant to be all-inclusive. If the PERM job position is not listed, it becomes the employer's task to make the decision if the position is professional or nonprofessional.
Once the employer decides the job is nonprofessional, such as a restaurant cook or a construction worker, the employer then begins the advertising process after obtaining the prevailing wage from the DOL. The prevailing wage is the base salary that the employer must pay the foreign worker. For nonprofessional jobs, the PERM process only requires three advertisements. First, the employer posts the Job Order on its state workforce agency website. This ad must be posted for 30 days. The final two advertisements are newspaper ads that must run in two consecutive Sunday editions of the job location's geographic area. For instance, if the job is located in Washington, D.C., the best newspaper to use for the PERM ads would be the Washington Post.
The advertisements do not need to include every single detail about the position. The PERM regulations require the advertisements to name the employer, direct applicants on how to send resumes to the employer, provide a sufficiently detailed description of the job to inform applicants of the duties, and indicate the worksite area(s) so applicants will know where they would need to live in order to fill the job.
Since these issues can be very complicated, contact our office today at 650-293-0270 to speak to a skilled attorney who can answer all of your PERM-related questions.
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