4 Common Pitfalls Employers Make on the PERM Job Description
What is PERM?
PERM is the first stage of the 3-stage green card process most professional workers go through in the U.S. in the quest for permanent resident status. It is an acronym for the Program Electronic Review Management labor certification system and is managed and administered by the U.S. Department of Labor (DOL).
Under PERM, the idea is that U.S. companies/employers must adequately test the relevant U.S. labor market where the green card job is located. Through this test, if the company/employer could show that it cannot find an “able, willing, qualified, and available” U.S. worker to fill the PERM role after performing all of the mandatory steps, then it is permitted to use the PERM position to support the foreign national’s employee’s green card application. The way to do so would be to submit a PERM labor certification request to the DOL.
Ask any immigration professional or employee who has been through the process, and they will tell you that the overall PERM labor certification application is at best complicated and trap-laden, and at worst, a confusing slog in a bureaucracy that drags on forever.
To help you—the company/employer—get a solid start on the process, this guide provides a generalized roadmap in thinking through how to write a “good” PERM job description that will allow the company to: (1) adequately describe the true minimum requirements of the position, and (2) understand the ramifications of not properly investing time and effort into this crucial step.
Why is it a bad idea to just use a regular job ad for PERM?
In the real world, companies have different recruitment philosophies. In some cases, they recruit competitively, seeking the most qualified candidate for their open positions with laundry lists of “desired” qualifications listed. In other situations where the competition for talent is fierce, companies go with a very lax initial qualifications list, hoping to attract as many candidates as possible initially to cast a wide net.
Enter the twilight zone of PERM labor certification, where the DOL cares about one thing and one thing only, and that is that the PERM recruitment is based solely on the actual minimum requirements for the job. Below, we list out a few of the most common pitfalls.
Pitfall #1: minimum requirements vs. preferred requirements
The “minimum” education, training, and experience that companies are supposed to provide under PERM regulations cannot include any “preferred” qualifications or “soft skills.” A helpful exercise to understand this would be to ask the hiring manager, “What if this particular foreign national employee were no longer available and you had to find a replacement within one week? What bare minimum credentials would you need the replacement worker to have to be able to function in a reasonable manner in the position?”
Pitfall #2: quantifiable “hard skills” vs. subjective “soft skills”
The first rule of PERM is that all requirements must be quantifiable. How deep someone’s knowledge is or how enthused they are about evangelizing the company’s product are not quantifiable. On the other hand, requiring a certain period of work experience with a particular software operating system, programming language, computer application, etc. is quantifiable.
To see why quantifiable requirements are critical, imagine you are a DOL officer, and ask how you would determine whether a particular applicant was fairly or unfairly rejected for not having a “deep” enough knowledge of a particular skill. Clearly, those words are subjective in their very nature and do not belong in a PERM job skill set. If the hiring manager also cannot reasonably quantify subjective job requirements, the sad fact of the matter is that your immigration attorney will need to exclude them from the list—no matter how important they are in “real world” recruiting.
Basically, all subjective terms, such as “advanced understanding,” “good people skills,” “excellent communicator,” “ability to work in a fast-paced environment,” etc. should be avoided.
Pitfall #3: requiring minimums that the employee him/herself can’t prove that they satisfy
The DOL, like many government agencies, is very exact when it comes to enumerated requirements. Before saying in a PERM job description that a Master’s degree is required, it is a very good idea to confirm that the foreign degree(s) that the foreign national employee possesses actually equates to a Master’s degree in the US, as verified by a degree equivalency agency. Also, when a PERM job description says that 5 years of experience is required for a particular role, you should confirm that the sponsored foreign national employee has at least 5 years of full-time experience. That’s right, 4 years, 11 months, and 25 days of the most amazing experience in your ideal candidate will not work for PERM. BE EXACT.
A general rule of thumb o keep in mind when assessing whether the foreign national employee has the required PERM experience is that unless specific exceptions apply (talk to your immigration attorney if you’re curious), the employee can’t count the work experience gained with the sponsoring US company. They can, however, count the experience gained with other US organizations or even foreign affiliates of the current US company.
These issues might be caused by the employer using the “real world” job description as more of a guideline than a bright-line standard. Or it may be caused by other “real world” hiring practices, such as the employer counting the foreign national’s pre-academic work experience, or the employer counting two degrees as equivalent to one degree, etc., which are just no-no’s in the PERM world.
Pitfall #4: common red flags to the DOL triggering an audit
Remember, it is the DOL’s job to prevent and dissuade companies/employers from using unrealistic job requirements that exceed the true minimum requirements of the role and are unduly restrictive for U.S. workers to qualify. That’s why when DOL sees abnormal requirements such as foreign language skills for a marketer in the U.S., or a Ph.D. plus 15 years of experience for a mid-level manager role, or a 24/7 on-call requirement for a computer engineer, these are potential triggers for the department to launch an audit to investigate any such suspicious recruitment tactics.
On the flip side of Pitfall #3, companies sometimes provide “minimum” job requirements that only the particular employee could meet. This is when companies/employers are only thinking of the foreign national employee they are trying to kick off the green card process for, and inadvertently tailoring to the foreign employee’s qualifications. This is a definite cause for an audit and an eventual denial, as the DOL will assume the company has disadvantaged U.S. workers by unfairly restricting the applicant pool.
Lastly, Some Examples of PERM Job Descriptions
For the purposes of this post, we are going to write a PERM job description for an Immigration Paralegal role. To emphasize what a good PERM JD is supposed to look like, we are going to give you two (2) scenarios of the most common “bad” prototype PERM JDs that employers/companies come up with and explain why each one is problematic for PERM. Hopefully, this will give you a good explanation of how to draft your own “good” PERM JD.
| The Bad JD #1 (Too Tailored/Specific) | The GOOD JD | The Why |
| Senior Paralegal, Immigration | Senior Paralegal, Immigration | |
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Start to finish preparation of employment-based immigrant visa petitions with minimal assistance and supervision, including:
Preparation of NIV cases such as H-IB's, E-1/E-2s, E-3s, L-1A/L-1Bs, etc. Constantly monitor 100-200 active cases on average including both for individual and corporate clients. |
Prepare, review, and file nonimmigrant and immigrant visa petitions to USCIS and to DOL. Support immigration attorneys in researching immigration and government regulations, case law, and procedures to support client cases. Communicate extensively with clients regarding requests for information, case status, and immigration procedures. Manage and maintain an active personal caseload of both individual and corporate clients Collaborate with government liaisons, such as congresspersons’ offices, to address problems related to client cases |
Bad JD is too specific in that it tries to describe everything in excruciating detail. This is a good set of job duties if used in the H-1B context, but it is not good for PERM. Bad JD is too long. Remember, you are going to recruit based on these duties, so including lots extra duties that aren't really necessary to describe the work to be performed may add up to higher ad costs. Shoot for 4-5 solid bullet points that capture the essence of what a candidate will do in the proposed PERM role. Good JD describes the role to a reasonable degree without going into too many specifics. |
| Bachelor’s degree in Pre-Law with a concentration in Immigration required | Bachelor’s degree in Pre-Law, Paralegal Studies, or Related | Bad JD’s degree requirements are way too specific. It is very possible that someone with a BA in a Paralegal Studies without a concentration in immigration could perform the role very adequately. |
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8 years of experience in the job offered or related occupation required
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2 years of experience in a related occupation required
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Bad JD’s experience requirements are too high. Unless the company is prepared to make a very strong business necessity argument of why 8 years of experience is really needed for this job, DOL will consider this to be outside of what the market considers to be the norm for an immigration paralegal. If 8 years is really required and is what the PERM is going forward with, this case will have a higher likelihood of an audit. Bad JD’s skills requirements are (1) too specific, and (2) the experience requirements are too high. Again, DOL will question if you really need 6 years of experience in something very specific such as working with Belgian companies to perform the role adequately. |
| The BAD JD #2 (Too Subjective/Soft) |
The Good JD | The Why |
| Paralegal | Senior Paralegal, Immigration | |
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Work with attorneys on many immigration cases Manage case files Prepare filings with government agencies Gather application information Responding to inquiries in a timely manner and adhering to submission deadlines |
Prepare, review, and file nonimmigrant and immigrant visa petitions to USCIS and to DOL. Support immigration attorneys in researching immigration and government regulations, case law, and procedures to support client cases. Communicate extensively with clients regarding requests for information, case status, and immigration procedures. Manage and maintain an active personal caseload of both individual and corporate clients Collaborate with government liaisons, such as congresspersons’ offices, to address problems related to client cases |
Bad JD is too general as it does not give a good idea of what the candidate will actually be doing on a day-to-day basis Good JD describes the role to a reasonable degree without going into too many specifics. |
| Bachelor’s degree | Bachelor’s degree in Pre-Law, Paralegal Studies, or Related | Bad JD’s degree requirement does not list any specific majors |
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Deep experience with immigration cases Extensive knowledge of visas Proficiency in legal terminology Exceptional recordkeeping and communication skills |
2 years of experience in a related occupation required
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Bad JD’s experience requirements are too subjective. “Deep experience,” “extensive knowledge,” and “exceptional” skills are impossible to quantify objectively. Bad JD's experience does not have any quantifiable metric. There's no measurement of how the experience could be gained. |