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How COVID-19, other legal changes have impacted the PERM process

Written by Meredith W. Barnette, Esq., Partner.

PERM is often the first step in the sponsorship process for employers seeking a green card for a respected employee.

Over the last few years, the COVID-19 pandemic, legal settlements and local laws passed by municipalities and states have all had the potential to affect and alter the PERM process in some way.

Below are updates and information to know about the potential impacts of those changes as well as a description of the PERM procedures.

The PERM process

PERM is an electronically filed, attestation-based application submitted to the U.S. Department of Labor (DOL) following a test of the labor market. The sponsoring employer certifies that:

  • It has an opening for a full-time, permanent position
  • It conducted advertising to determine if there are able, willing, available, and qualified U.S. workers for the position
  • U.S. worker applicants were rejected only for lawful, job-related reasons
  • The employer can and will pay a wage that equals or exceeds the prevailing wage for the position as determined by the DOL.

To test the labor market, employers must advertise an opening for the offered position as described in the PERM regulations.  The employer must thoroughly review and consider all applications received during the recruitment period. The PERM application cannot be filed with DOL if an able, willing, available and qualified U.S. worker is identified in the labor market test.

PERM regulations clearly state that an applicant can be rejected as unqualified only if they do not meet the job requirements and would not be able to acquire skills necessary to perform the duties after a reasonable period of on-the-job training.

The DOL leaves to the employer the burden of proving what is a reasonable period of on-the-job training. When starting the PERM process, it is essential that employers thoughtfully consider the absolute minimum job requirements and include only those that are quantifiable.

Establishing the employer’s absolute minimum job requirements is essential to a successful PERM application that properly tests the job market and can be certified by the DOL. The minimum job requirements will also be central to the immigrant visa petition which is the next step in the green card process.

The job requirements impact both the prevailing wage and the required determination around qualified U.S. workers. The employer must use the same requirements to determine that the foreign national employee is qualified for the position. The employer should use the company’s actual job requirements and not structure requirements solely to fit a desired category.

Prevailing wage determination

Employers must confirm when filing the PERM application that they will pay at least the prevailing wage at the time a foreign national employee becomes a Permanent Resident.

In order to attest to paying the prevailing wage, the employer must apply for and receive from DOL’s Employment and Training Administration National Prevailing Wage Center (NPWC) a prevailing wage determination (PWD).

Additionally, the wage posted in any of the advertisements, the Notice of Filing, and on the ETA Form 9089 Application for Permanent Labor Certification must be at least 100% of the prevailing wage issued by the National Prevailing Wage Center (NPWC).

More information about the prevailing wage determination can be found here.

Impact of Facebook settlement on PERM applications

Facebook reached separate settlements in late 2021 with the Departments of Justice and Labor which resulted in a large financial penalty in connection with its recruitment practices during the PERM process.

The DOJ lawsuit alleged U.S. worker discrimination in the company’s use of the PERM program. Specifically, the DOJ alleged that Facebook engaged in unfair recruitment and hiring practices. It is important to note that the settlements are not an admission of liability. Facebook continues to deny any wrongdoing.

The monetary component of the settlement requires that Facebook create a settlement fund to pay up to $9.5 million to impacted U.S. workers and a civil penalty of $4.75 million to the U.S. government.

In addition to the monetary penalties, the company also agreed to make various changes to their PERM recruitment practices, including, but not limited to, accepting electronic resumes or applications on its website in the same manner as for non-PERM positions; not requiring or encouraging applicants to apply via mail for PERM-related positions; posting all PERM-related positions on the Facebook website in the same manner as other job openings; and entering all applicants for PERM-related positions in its internal recruiting system for consideration for related job opportunities.

The terms Facebook accepted in the settlements exceed the statutory and regulatory requirements for the PERM labor certification process. Further, the suit arose from a discrimination claim rather than an allegation of violation of the DOL rules for recruitment in connection with the PERM process.

Many analysts feared there would be a significant, long-lasting impact on the PERM process resultant from the Facebook agreement with the DOL and DOJ. However, it is important to note that the Office of Foreign Labor Certification (OFLC), part of the DOL, has suggested that there have not been any substantial changes to the PERM labor market test because of the settlement, according to the American Immigration Lawyers Association.

Therefore, the settlement has had little to no impact on the PERM process, as of March 2022. Employers should continue to review and follow the most up-to-date PERM guidance published by the DOL. Employers should also consult with experienced immigration counsel to resolve any questions, to receive further information, if necessary, and to ensure all proper PERM protocols are followed.

PERM recruitment strategies and the COVID-19 pandemic

The COVID-19 pandemic has impacted the world in countless ways, including where and how people work.

During the pandemic, many employees were forced to switch to a work-from-home environment instead of commuting to a standard office setting. Numerous employers elected to continue to offer their employees a work-from-home or hybrid work option instead of a complete in-office schedule after vaccines became widely available.

A key element of the PERM process is the Notice regulation, which requires employers to post a clearly visible notice about the job opening at the worksite or its primary office for at least 10 consecutive business days. The notice “must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment.”

Employers returning to a full-time or hybrid office setting can likely continue to comply with the DOL Notice requirement without making any changes to their pre-COVID procedure.

Employers in a fully remote environment must also continue to comply with the notice requirement. This could pose a compliance challenge as these employers may not be planning to reopen their physical office space at all.  It is recommended, where possible, to maintain a physical office address and location for Notice posting purposes.

Employers can post the notice in any shared area of the physical office space, which could include group workstations or a break room. Employees must have the ability to enter the office space to read the posted notice in order to comply with the DOL Notice requirement.

Aside from the DOL Notice requirement, COVID has impacted the PERM process in the following ways:

COVID vaccination requirement

As of late 2021, about 36 percent of U.S. employers required employees to receive a COVID-19 vaccination in order to accept a job at their company or to return to an office setting, according to an article published by Forbes, which cites data from Mercer.

The Department of Labor has yet to release guidance that specifies how employers should list a vaccine requirement during the PERM recruitment process. It remains unclear if an employer’s vaccine mandate needs to be listed in a PERM recruitment ad or if the requirement is considered a condition of employment.

Employers with vaccine requirements should consult with experienced immigration counsel to determine the best strategies throughout the PERM process.

Full-time remote employees

The shift to remote work happened suddenly in early 2020 and could have a significant effect on PERM applications that are already in process.

Employers will likely be required to file a new PERM application if a position transitioned to permanently 100 percent remote during the pandemic and that was not indicated in the PERM application.

Positions that went remote during the pandemic but will ultimately return to an in-office setting by the time the employee’s green card is approved will likely not have to file a new PERM.

Employers should consult with experienced immigration counsel to discuss the impact of COVID on previously filed PERM applications.

Job postings: Minimum and maximum salary range

New York City passed a new local law in mid-January which requires employers to provide their actual minimum and maximum salary range for every job posting.  This could result in a conflict with the DOL rules regarding determining the minimum salary in a range in the PERM advertising context.

Multiple other states and municipalities including California, Colorado, Connecticut, Maryland, Rhode Island and Washington have already implemented similar rules.

However, the New York City rule differs slightly. Salaries in other jurisdictions are not required to be listed on the actual job posting. Instead, the salary range must be provided if requested by the perspective employee or at the time a permanent offer of employment is tendered. Of note, a similar law in Colorado is specifically not enforced for PERM recruitment.

To date, there has not yet been any guidance released from New York City or the Department of Labor regarding how the new rule could impact the PERM process in that municipality and across the country. The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation closely and will advise clients as well and employers if and when new information becomes available.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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