The PERM Form 9089 Application for Permanent Employment Certification is essentially a test of the U.S. labor market. It is filed by an employer with the Department of Labor attesting that there are not sufficient U.S. workers in the geographic area of employment who are able, willing, qualified (or more qualified, in the case of college and university teachers) and available to perform the job in question, and that the permanent employment of a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. UConn must conduct recruitment for the beneficiary’s position, review all applications received by U.S. workers, and even conduct interviews of qualified U.S. workers prior to filing. This process is intended to protect U.S. workers by ensuring that they are given a fair chance to apply for the position for which the foreign national has been selected. The DOL will then review the PERM Form 9089 and make a decision to either certify or deny the application.
UConn has the ability to pursue two different types of PERM applications: the basic PERM process and an optional, less stringent “Special Handling” process for faculty teaching positions. The beneficiary’s position must include some classroom teaching duties to qualify for “Special Handling.” Because UConn generally pursues lawful permanent residency only for tenure-track faculty, the “Special Handling” process is the process most frequently used by UConn. Sometimes, however, even faculty teaching positions cannot benefit from Special Handling because the original search did not meet all legal criteria to be eligible for PERM filing. In those cases, the University will need to pursue another PERM recruitment process for such faculty or examine whether the beneficiary might qualify for an alternative option.
All positions subject to the green card process must meet several basic requirements, including full-time (as opposed to part-time) employment, a permanent (as opposed to a temporary, postdoctoral or seasonal) position, and reasonable job requirements customary to the occupation and not tailored to the intended beneficiary. As with H-1B temporary employment, the employer must agree to pay the higher of the prevailing wage or the actual wage for the position.
In addition, the employer must establish that the educational and experience requirements are not “unduly restrictive” to limit the applications of U.S. workers. The employer must be prepared to justify any unusual job requirements by a legitimate business necessity, including a demonstration that it has required the same unusual job requirements for previous hires into the position. As a first step in the green card process, the Office of the General Counsel (OGC) will identify any unduly restrictive or unusual job requirements and screen out unjustifiable requirements with the hiring department before pursuing the PERM process.
Both the Special Handing and the Basic PERM processes require that an internal notice of the PERM filing be posted by the hiring department or delivered to the collective bargaining representative if the position is unionized. OGC will draft these notices on behalf of the University.
For both the Special Handing and Basic PERM processes, the date on which the application is filed with the DOL’s PERM system establishes a “priority date” for the beneficiary, which later determines the beneficiary’s place in line for an immigrant visa number. DOL is currently taking between four months and one year to adjudicate PERM applications that are not selected for audit, although this information is live and is subject to change. The audit process can add at least one additional year to PERM adjudication. Unfortunately, PERM applications are selected for audit at random, and the University cannot control or prevent the occasional, random PERM audit.
By DOL regulation, the employer, which in this case is the hiring department, must cover the costs of the PERM preparation, including the costs of the advertisements.
Special Handling PERM Process at UConn
One of the benefits of Special Handling is that the recruitment phase has been completed during the initial search that brought the tenure-track faculty member to UConn, and therefore the hiring department does not need to conduct additional recruitment steps or review any additional résumés from U.S. workers. To qualify for Special Handling, however, the PERM application must be filed within 18 months from the date of the initial position offer letter to the beneficiary, not the date of hire. If the Special Handling PERM application is not filed within this timeframe, a completely new, full-scale candidate search through either the Special Handling or the Basic PERM process must be conducted before another PERM application may be filed.
NOTE: To meet the 18-month U.S. Department of Labor filing requirement, UConn hiring departments must submit completed request forms to OGC no later than 15 months from the date of the offer letter.
UConn will not begin the PERM process on behalf of a faculty member until after the faculty member has completed one full semester of teaching duties with UConn. To do otherwise would commit both parties to a multi-year employment relationship which might not be the best fit for either the University or the beneficiary. This policy applies to all tenure-track faculty unless the beneficiary will pass the 15-month deadline before the completion of his or her first semester with UConn.
For OGC to begin a Special Handling PERM application, it requires copies of at least one advertisement placed in a national professional journal, either print or posted a full 30 days on-line, which clearly states the position title, duties, and minimum job requirements. The advertisement must include the entire title page, showing the journal name and publication date, as well as the entire page on which the ad appeared. If using an on-line ad, screen shots of the website should be taken on the first day of posting, a mid-point, and the final day of posting as evidence that the ad appeared in the national professional journal’s on-line job listings for the full 30 days. Copies of any other advertisements or recruitment efforts made to recruit for the position, such as printed advertisements in journals or newspapers, networking contacts, or screen shots of Internet webpage postings and Husky Hire postings, should also be provided. Note that it is the hiring department’s responsibility to gather and maintain evidence of the recruitment steps conducted for its search.
Hiring departments will keep the resumes of all applicants in their files in accordance with the University’s standard search procedures.
The hiring department should budget $3,000 for advertising costs, as the two Sunday newspaper advertisements alone are expensive. OGC will work with the department to determine the most economical and convenient options for the 3 additional required advertising steps.
Please confirm all advertisements with the OGC Attorney before placing the ads in print or online, as the DOL dictates the information an advertisement must contain for PERM purposes. It would be a waste to place an advertisement and conduct recruitment, just to realize after the fact that the advertisement was invalid for PERM purposes.
The Basic PERM Recruitment Process follows the standard search and selection process at UConn. The hiring department will conduct the initial review of all resumes and applications received through the advertising steps and determine whether any interviews are warranted. All applications and resumes will be reviewed by ODE pursuant to the University’s standard recruitment process to ensure that the hiring department has a justifiable reason to deny the applicant an interview. ODE and the OGC Attorney will work closely with the hiring department to determine whether any U.S. workers qualify for the position and whether the University can file the PERM application on behalf of the beneficiary. The hiring department should be prepared to conduct interviews with U.S. applicants in the event that they meet the job requirements on paper. The hiring department and beneficiary should also be prepared that the recruitment process could result in the finding of a U.S. worker who is qualified (or more qualified, in the case of a university teacher) for the position, in which case the University cannot pursue the PERM filing at that time. If a qualified U.S. worker voids the PERM recruitment process, the University may be able to conduct recruitment again in the future and, if successful, file the PERM at a later date.
Pursuant to DOL regulation and the University’s need to review applications received through the recruitment process and conduct possible interviews, the recruitment phase for Basic PERM requires at least 90 days to complete prior to filing the PERM application with the DOL.
For both the Special Handing and Basic PERM processes, the date on which the application is filed with the DOL’s PERM system establishes a “priority date” for the beneficiary, which later determines the beneficiary’s place in line for an immigrant visa number. Supporting documentation for the PERM is not sent to the DOL unless the PERM application is selected for audit. The DOL is currently taking between ten months and one year to adjudicate PERM applications that are not selected for audit, although this information is live and is subject to change. The audit process can add at least one additional year to a PERM adjudication. Unfortunately, PERM applications are selected for audit at random, and the University cannot control or prevent the occasional, random PERM audit.
By DOL regulation, the employer, which in this case is the hiring department, must cover the costs of the PERM preparation, including the costs of the advertisement.