Legal Requirements

Special issues relate to certain legal standards, including Time Lines and Time Periods, Substitution of Alien or Employer, Unlawful Payments to Employers or Attorneys, Attestations, and Ethics in PERM Processing.

Many PERM applications are denied because of errors made in the time line and time periods for recruitment and in the filing requirements that pertain to the measurement of time for completion of recruitment steps, often arising out of the 180-day Prevailing Wage validity period, the 180-day limit for overall recruitment, the timing of the two Sunday ads the number of days for each step of the three steps of professional recruitment, the 30-day notice of filing and the 30-day SWA job orders.

Labor certifications are only valid for the job opportunity, the specific alien named in the application, and the specific area of intended employment. Substitutions are no longer permitted. (However, see special rule for professional athletes in Chapter 4. When changes occur after filing form 9089 , they cannot be amended on Form 9089 but can be explained to DOL in response to a request for information or an audit. However, some changes may be explained when filing Form I - 140 with the USCIS or per the porting rules during Adjustment of Status Proceedings under AC21.

The PERM rule states that applications for certification or approvals may not be sold to individuals or entities. Employers may not receive any payment for attorney fees or expenses for PERM applications from foreign workers or other persons, however, foreign workers may pay for the I-140 immigrant petition, adjustment of status and other services not part of the PERM process.

The PERM rule requires employers to make attestations pertaining to the conditions of employment. These attestations are listed on the ETA Form 9089. Some of the attestations require confirmation that the offered wage equals or exceeds the prevailing wage, the employer can pay the prevailing wage, the job is bona fide, and the job opportunity is open to US workers.

Issues of ethics permeate the labor certification process, as the Employer recruits US workers to fill a job opportunity that it wishes to offer to a foreign worker. The Employer’s responsibility is to have a bona fide job offer and search for US workers.