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The “PERM” Process: Quick Tips for the HR Professional, Part 2

Last week, I discussed the basics of PERM, “Program Electronic Review Management.” This week I discuss developing an effective strategy for your PERM case and how best to allocate company resources to PERM.

PERM requires companies to prove that there are no minimally qualified U.S. workers available to fill a position held by a foreign national, and is often the first step for a petitioning company to sponsor a foreign national for permanent residence (otherwise known as a Green Card). When developing a plan for PERM, it is important to understand that you will not be identifying what you prefer to see in an applicant or what an ideal applicant brings to the table, but what an applicant who has the bare minimum qualifications would look like. This is quite challenging for many employers who quite naturally recruit for highly qualified applicants and do not recruit for someone who offers merely the bare minimum. You must realize that the DOL is concerned with protecting the U.S. workforce so they are putting the burden on employers to show that someone with the bare minimum qualifications is not present in the workforce, and therefore a foreign national can be a beneficiary of a green card.

One of the very first steps that your counsel will likely have you do is to complete a questionnaire. If you have competent and talented counsel working with you on your PERM case, they will likely send you a questionnaire that specifically targets the information needed to develop a strategy for the PERM case. From the foreign national, counsel will need detailed information about his/her work history. When asking this information, counsel is trying to determine the foreign national’s qualifications. When you get to a point where you can say confidently that there are no minimally qualified U.S. workers and the DOL agrees by approving your application, USCIS will want to see that the foreign national meets the minimum requirements. To ensure your foreign national can do this, counsel must therefore, delve into the foreign national’s educational and prior work history, including details such as: where had he or she worked, how long, in what positions, and what skills did he or she gain in each of those prior positions.

How to Allocate Your Company’s Resources

When clients ask me how best to allocate resources for PERM, I always tell them to devote a significant amount of time to the job description. A strong, well-thought-out job description can make the difference between an approval and denial. Therefore, it is critical that you (1) review what you truly need as a minimal requirement for the job; (2) check other similar positions and see what those employees brought to the table when hired; (3) look at your competitors’ job postings to see if you have missed any critical minimally required skills; (4) talk to the foreign national’s manager and the manager above the foreign national’s manager and get their input. While it may be easier to simply use your regular job description, it makes for a far weaker case.

Likewise, it is helpful to allow your foreign national time on his or her questionnaire. Counsel needs detail regarding the foreign national’s background, education, work experience, and skills learned in previous positions, etc. In some cases, the foreign national’s work on the questionnaire can be used to make your job description even stronger, by seeing if any of the skills the foreign national learned at prior positions are minimally required skills for your position. As you can see, a comprehensive list of minimally required skills, which is honest and true to your company's requirements, is key.

When thinking about how to devote resources to PERM and make the process manageable for any sized company, it is also important that you devote time to resume review. Once recruitment is posted and you start receiving resumes, the DOL expects you to review the resumes very quickly and assess the applicants’ credentials against your minimum requirements. Counsel can make this easy for you by providing a checklist based on the job description for the job, but by regulation, counsel is prevented from reviewing the resumes for you. You need to review the resumes and do so quickly. In so doing, it is important to be generous when deciding who gets an interview and likewise schedule the interviews quickly. The burden is on the employer to show that you have given every applicant the benefit of the doubt; ruling applicants out based on just a few missing skills is not recommended. The DOL could deny a case if the agency believes that you have waited too long. The logic is that, if you wait too long, an applicant could find another job in the interim, thereby taking him or herself out of contention and tainting your labor market test.

Conclusion

Although the PERM process is sometimes considered the most demanding of the various immigration processes you may encounter, it can absolutely be manageable, user-friendly and is certainly integral to employee retention. It is important to hire competent counsel who has an expertise in PERM, spend time on the questionnaire and job description, and review resumes quickly. With these simple steps, you will be well on your way to receiving that coveted email from the DOL advising you that your PERM case has been approved.