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Joel Stewart on PERM Labor Certification

PERM: Is Extra Recruitment and Advertising Permitted?

Rating: 3 votes, 5.00 average.

The question has often arisen whether an Employer may conduct recruitment and advertising beyond the time period required by the PERM regulation. For example, an Employer might want to place more than two Sunday ads,  advertise for more than 30 days in with the State Workforce Agency, conduct more than three additional professional recruitment efforts or place a Notice of Filing for more than 10 business days.

The answer is "yes"-- in all cases, an employer who has a bona fide job opportunity may recruit for workers as often and as long as it pleases and is not restricted by the regulatoy terms of art of the PERM Rule. These regulations describe a specified and limited recruitment plan to apply for labor certification on Form 9089 under the conditions of 20 CFR 656, within a specific 180 day period and with a 30-day waiting period before filing at the end of the 180 days. As long as all the minimum recruitment periods are met within the 180 day period which include a final 30 day waiting period, the Employer has complied with the PERM Rule.

Of course, the regulations themselves do not prohibit one of the three professional recruitment efforts to take place during the 30 day waiting period before filing the 9089 Form. (An FAQ specifically addresses this issue of extra advertising as it refers to the 30-day job order with the SWA).

FAQ: Must the required 30 day job order timeframe end at least 30 days prior to filing? 

While the employer is not limited to the 30 day time frame and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.

Form 9089 queries the dates of recruitment. Compliance with the PERM Rule may be met by showing the beginning and end of the required recruitment and advertising during the 180 day period and at least 30 days before the 30-day waiting period. The Employer may indicate extra requirement on the 9089 form and document that the extra recruitment continued into the 30-day waiting period, however, it is possible that the DOL might flag such recruitment for audit or denial, based on the intrusion of the additional recruitment and advertising into the 30-day waiting period.

The Employer might hold this extra recruitment in the record file, and, in case of audit, the Employer could submit the entire recruitment including extra recruitment before and during the 30-day waiting period to clarify that it has not violated any laws! Thus the Employer could fill out Form 9089 to comply with the PERM Rule -- 20 CFR 656 -- and fill out on the Form any and all extra recruitment that occurred prior to the 180 day period or during the 30 day waiting period. Such recruitment would be extra and  not required by the PERM Application.

The situation differs from the pre-PERM rule which required employers to document any recruitment which took place anytime prior to filing the application for alien labor certification on Form ETA-750A.

Just as the PERM Rule contemplates the Employer to place only minimum requirements on the form subject to regulatory guidance like SVP, O*Net, SOC, and other standards, so are the recruitment and advertising requirements quanitifed to include 2 days of Sunday ads, 10 business days for posting of the Notice of Filing, 30 days of advertising in the SWA job bank, and 3 additional forms of recruitment for professional positions.

When additional recruitment occurs during the 30 day waiting period, what responsibility does the Employer have to consider the job opportunity open to US workers between the date of filing Form 9089 and up until the time the PERM application is finally adjudicated?  If approved, the position is then closed and, if certified, the Employer may file an I-140 Immigrant Visa Petition on behalf of the alien.

While the Department of Labor does not currently contemplate additional communication from the Employer after Form 9089 is filed, however, prior to the introduction of the PERM Rule in 2005, Employers were held responsible to recruit in good faith up until the time the labor certification application was determined by the Certifying Officer, and not just up until the date the application was filed with the Certifying Officer.

While it is clear that the Employer may engage in extra recruitment and advertising, it is not clear whether the Employer has any post-filing responsibility to report the availability of US workers. The regulations do not address this, no doubt because PERM was contemplated to provide final determinations in a matter of days. However, as reality has set in, and many applications are submitted to delays of  up to 2-3 years if audited, the question of post-filing recruitment needs to be addressed as well as the legal distinction between recruitment considered as part of recruitment and advertising under the PERM Rule and the Employer's extra recruitment which may run before or after the regular PERM recruitment period.


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