PERM Pitfalls All Employers Should Know
If you want to sponsor an employee for an employment-based green card, you must complete the permanent labor certification (PERM) process.
Frankly, the process is a mess, and it’s easy to get wrong.
Here are a few pitfalls to know about.
Misunderstanding the Timeline
The Department of Labor says PERM applications should be resolved in 45 to 60 days. However, the process can take up to two years to complete.
Failing to anticipate these delays could create complications for your business.
Passing Up Qualified American Employees
Apple recently paid a $25 million settlement after the Justice Department determined that Apple illegally discriminated in hiring and recruitment in hiring and recruitment against U.S. citizens and certain non-U.S. citizens whose permission to live and work in the United States does not expire.
It’s not clear why Apple preferred PERM beneficiaries to locals. But in addition to paying a significant amount of money to the qualified workers harmed by their hiring practices, Apple must also conduct more expansive recruitment for all PERM positions, train employees on the INA’s anti-discrimination requirements, and be subject to departmental monitoring for a three-year period.
Some companies may prefer PERM employees because those employees are less likely to leave, but you are still required to make an honest attempt to recruit locally.
Failing to Notify and Consider Laid-Off Employees
PERM requires any company that has laid off workers within six months of the anticipated PERM filing date to notify those workers that there is a job opening. They must consider those workers. If you can find even one laid-off worker who can fill the role, you can’t proceed with the labor market test.
You don’t necessarily have to hire that worker, but you nevertheless will be required to hire an American worker after finding the qualified laid-off worker.
Failing to Work With an Immigration Attorney Early Enough
Most employers work with an immigration attorney at some point during the process, but some wait too long to seek advice and support.
For example, an immigration attorney can help you review job postings to make sure your company will have an excellent chance of demonstrating that you did indeed make a good-faith effort to hire an American employee. We can also help you navigate other aspects of the process, which can become quite labyrinthine.
We can also help you avoid pitfalls specific to your role, industry, or company.
Ready to get started? Contact Hykel Law today.
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