U.S. PERM Process: The Employee's Role

Immigrants wishing to apply for a green card through their employer can do little at first - the initial work is done largely by their employer.

Many foreign workers with temporary visas to the U.S. want to obtain U.S. green cards so that they may live and work in the U.S. permanently. One of the most common ways that foreign workers obtain green cards is by having their U.S. employer file an immigrant petition (Form I-140) on their behalf.

A variety of different types of employment-based green cards are available under U.S. immigration law. Most of them, however, require that a major procedural step be undertaken before the worker can actually apply: The U.S. employer must complete a process called "labor certification" (PERM).

During the PERM process, the U.S. employer advertises for the foreign worker’s proposed position to ensure that there are no qualified U.S. workers available for the job. The PERM process culminates with the employer filing the ETA Form 9089 electronically with the Department of Labor ("DOL"). The DOL reviews the ETA Form 9089 to confirm that the employer placed the correct advertisements and that no qualified U.S. workers applied for the job opportunity.

The PERM process is very employer-based -- meaning that the prospective employee (and beneficiary of the PERM application) does not have many responsibilities in connection with the application. In fact, U.S. law prohibits the beneficiary from participating in the majority of the PERM process. This article explains what the beneficiary can and cannot do in connection with a PERM application.

What the Beneficiary Cannot Do

Per U.S. law, the beneficiary is prohibited from participating in the advertisement process for the PERM application. Typically, U.S. employers post multiple advertisements for the job opportunity in local and national newspapers, on the employers’ own website, and on job search websites.

As the beneficiary, you cannot play any role in placing any of the advertisements. For example, let’s say that your employer is placing an advertisement in The New York Times newspaper. Because you are the beneficiary, you cannot draft the advertisement or contact The New York Times for information on how to place the advertisement.

Additionally, U.S. law prohibits the beneficiary of a PERM application from paying for (or reimbursing the employer for) any part of the application, including but not limited to attorney fees and the costs of the advertisements. If the DOL discovers that the beneficiary has paid for any of the PERM costs, the DOL can impose heavy fines and other penalties against the employer. The DOL will also deny the PERM application in this situation.

What the Beneficiary Can Do

While it may seem that the beneficiary is not included in any part of the PERM process, that is not strictly true. The beneficiary can participate in the process passively, by providing the employer (and immigration attorney) with information such as the beneficiary’s employment and education credentials, job-related skills, etc. This information assists the employer and immigration attorney with devising the PERM strategy that is most likely to lead to an approval. Typically, the employer also asks the beneficiary to provide copies of educational degrees, transcripts, work experience verification letters, and other evidence to confirm that the beneficiary possesses the appropriate qualifications for the job opportunity.

Nothing in the U.S. law prohibits the beneficiary from participating in the PERM process in this fashion. In fact, it is a good practice for the beneficiary and employer to discuss the beneficiary’s qualifications at great length to ensure the process is successful.

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