Parties to PERM

The parties in the PERM process are the Employer, the Attorney or Agent, and the Foreign Worker, all of whom must sign the PERM application. A Preparer (other than one of the parties) may also be required to be a signatory. Each signer has distinct characteristics and responsibilities.

The PERM definition of “employer” is broad and flexible. Each employer must (a) possess an IRS-issued Federal Employer Identification Number, (b) provide a place to which workers may be referred for employment (but which may include a home office or a telecommuting location), and (c) attest to the existence of a bona fide job opportunity and the ability to pay the proffered wage. There is an interesting interplay among the terms employer, employment, job opportunity and U.S. worker, but no definition of employee. Employment does not contemplate the relationship of a service provider or contract worker.

Employers can have attorneys or agents represent them in the PERM process. No license to practice law is required by DOL to be a designated agent, and there is no real distinction between the way the DOL deals with attorneys or agents. Neither the employer’s attorney or agent may participate in considering or interviewing U.S. workers for the job opportunity, unless such attorney or agent is the one who is normally
responsible for interviews.

The regulations prohibit foreign workers from exercising influence and control over the job opportunity. This may occur if the alien has ownership in the employment entity, a family relationship with an owner or officer, or a key position in the business entity.