Most people thing that the most important thing in a PERM case is an alien with unusual or exceptional abilities. However, aliens with very unusual abilities do not require a PERM case. They can apply as extraordinary aliens, outstanding researches, exceptional abilities, or persons who will work in the national interest.
In actual fact, the most important part of a PERM application is the Employer. The DOL places the Employer in a position of great responsibility in the PERM process. The Employer has a series of responsibilities that must be assumed to bring the application to a satisfactory conclusion.
One thing to remember is that the Employer must pay all the expenses connected with the PERM case. This includes all costs, like recruitment and advertising, and all professional fees, for attorneys and representatives.
The Employer must also establish a position that meets complex requirements under the PERM Rule. These include meeting prevailing wage guidelines, job duties that are legally sufficient, and minimum requirements.
The PERM process must also be expertly managed to ensure that all deadlines and requirements are met.
After a PERM process is approved, the Employer has to file an immigrant visa petition in 180 days, and this petition has to be extensively documented with the alien's qualifications and the employer's financial ability to pay the wages.
Normally an alien is working for the Employer with a temporary work visa when a PERM case is filed. The PERM regulation requires the Employer to be objective and fair in the recruitment process. DOL has many checks and balances to make sure that this occurs. For example, DOL may audit the case and ask for detailed information about the job applicants, their qualifications, and the way they were considered for the job.
Sometimes the alien is not working for the Employer. This may occur if the alien is abroad, or working for a different employer, working as a contractor, or not currently working for anyone.
An alien looking for an employer should keep in mind that all employers need qualified workers to perform services, so the key to a good employer-employee relationship is the exchange of employee services in return for a fair salary.
The internet has spawned a revolution in communications and how people find each other. A job seeker, both American and foreign, may research employers on the internet and ask them for employment. Personal acquaintanceship and recommendations is also very useful.
Some foreign workers, it is said, are willing to accept jobs that U.S. workers do not want to fill. In these times of high unemployment, it may be expected that more workers will apply for jobs advertised by the Employer. The statute requires job applicants to be qualified, available, willing and able. If the wages are not high, or if working conditions are not favorable, it may still be difficult to find job applicants.
It is difficult to explain to an Employer who is not experienced with PERM how the process for alien labor certification works. Usually the Attorney should explain that it will be necessary to make financial documentation available to DOL or DHS. This may include previous income tax returns, quarterly reports, and evidence of net current assets.
There is a requirement that the Employer maintain a "record file" for five years, and all assertions in the process, like minimum requirements, job functions and evidence of recruitment must be meticulously assembled in the file.
An Employer may be a physical person or a corporate business entity, so sole proprietors and partnerships may be qualified to file a PERM Case.
It should not be overlooked that a foreign Employer may file a PERM application, provided that the foreign Employer has a Federal Employment Identification Number and a place in the U.S. to which workers may be referred. All Employers, PERM or otherwise, must be prepared to follow all federal, state and local government laws and rules.
Perhaps the most important quality that an Employer must have is patience. PERM applications, immigrant visa petitions, and adjustment of status (or consular processing) constitute the process to apply for permanent residency in the U.S. Employers must have perseverance and be highly motivated employers to withstand the administrative and bureaucratic process called PERM!