New York Lawyer's Legal Updates

Can You File A PERM Petition By Yourself?

Author: Alena Shautsova

PERM petition or form 9089 is a petition by a US employer filed with the Department of Labor in order to sponsor a non-citizen employee for permanent work in the United States. Even though it is an employer who is supposed to file the petition, due to high technicalities of the process, most employers hire an attorney to handle it.

First of all, prior to submitting a PERM petition, an employer must comply with certain prerequisites: obtain a prevailing wage determination (PWD), and go through a good faith recruitment process. The procedures for both are highly regulated and a slight mistake or a typo will invalidate the whole process and will result in wasted time and money.

For example, to obtain a prevailing wage determination, an employer must submit a 9141 form indicating the specifications for the job opportunity. Let’s say an employer is hiring somebody who should work from the office, but may, if desired, work from home. This last opportunity “work from home” must be clearly stated in the advertising/recruitment process documentation in order to later obtain Labor Certification. Or, let’s say, the job for a skilled employee will require him to work not only at the main location but occasionally at other locations as well. Does an employer have to list only the main location, or other locations as well? The employer does have to list all locations on the PWD form, and during the advertising process, otherwise, the DOL (Department of Labor) will deny Labor Certification.

Supposedly, an employer duly complied with the PWD and recruiting process requirements. When is the time to submit the PERM petition? Should an employer do it online or via mail? Are there any specific requirements for filling out the form? DOL presumes that an average employer would be proficient in all these questions, but the truth is that there are many attorneys that are often confused about the process. The main point is that PERM must mirror PWD submission, as a slight variation or a typo will cause a denial of the application. Such small omission as an incorrect format for a date entry on form 9089 will result in denial. The appeal process takes over a year in this category of cases and often is simply not worth it. Importantly, that during the appeal with BALCA (Board of Alien Labor Certification Appeals), the employer is prohibited from submitted a new petition on behalf of the same employee.

Even though there are no fees for submission of the PWD and PERM forms, an employer still runs substantial expenses for the advertising, and if there is a denial and the deadline for resubmission is missed, an employer has to start the process all over again. As such, it is advisable that an employer hires an attorney who can make sure the forms are filled out correctly, and who will, if necessary, be able to present a valid legal argument in support of questioned submission.

30 May 2020
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