Employment Based Immigration - PERM Labor Certification Process

Labor Certification is the first step in the second (EB-2) and third (EB-3) preference employment-based immigration ("green card") categories. Essentially, at this stage of the employment-based green card proceedings the U.S. employer must test the local labor market and prove to the U.S. Department of Labor (DOL) that there are not sufficient workers able, willing and qualified for the position that they wish to sponsor a foreign national for. The U.S. employer must also prove that employment of the foreign national will not adversely affect the wages and working conditions of U.S. workers. The method currently used by the DOL to certify labor certifications is PERM (Program Electronic Review Management System).

What is PERM?

An employer wishing to sponsor a foreign national for an employment-based green card through the PERM labor certification process must submit an ETA Form 9089. This form can be filed electronically or by mail. If it is submitted electronically, the form is the ONLY DOCUMENT that will be submitted with the initial application. Submission of ETA Form 9089 with the Department of Labor (DOL) establishes the priority date for the foreign national. Non-electronically filed applications accepted for processing will be date-stamped establishing the priority date for the labor certification application.

Once the CO has electronically certified the application, the employer must sign it immediately in order for it to be valid. The USCIS will not process I-140 petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, foreign national, attorney, and/or authorized agent.

The DOL requires the use of user passwords, user identifiers, and/or personal identifier numbers (PINs). These will be issued to individuals and may only be used by these individuals. Any electronic transmissions submitted with a personal identifier will be presumed to be a submission by the individual assigned that personal identifier.

Centralized Process for Obtaining Prevailing Wage Determinations

Before the PERM labor certification process can begin, the employer must obtain a prevailing wage determination (PWD) from the DOL. This process is currently taking 45-60 days from the date of submission of the prevailing wage request to the DOL.

Once a PWD is received from the DOL, recruitment efforts may begin for the labor certification process.

Mandatory Recruitment Efforts

Recruitment for labor certifications that do not include special handling, Schedule A occupations, or sheepherders must submit a job order to the SWA in the area of intended employment for 30 days. The employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job opportunity is located in a rural (not suburban) area that does not have a Sunday newspaper, the employer may use the edition with the widest circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification.

Content of the Ads

PERM sets out specifics for the content of the advertisements (ads). The ads must include the name of the employer and they must direct applicants to report or send resumes, as appropriate, to the employer. It is necessary for the ads to provide a description of the vacancy specific enough so the U.S. worker will understand the nature of the job opportunity. The ads must indicate the geographic area of employment with enough specificity to let the U.S. worker know of any travel requirements or potential relocation. The ads must not contain: a wage rate lower than the prevailing wage; any job duties that exceed those listed on the ETA Form 9089; and/or any wages or terms and conditions of employment that are less favorable than those offered to the foreign national.

Additional Recruitment for Professional Positions

If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the following 10 recruitment efforts:

Recruitment at job fairs;
Recruitment on the employer's website;
Job search website other than the employer's site;
On-campus recruiting;
Use of trade or professional organizations for recruitment;
Use of private employment firms;
Employee referral program with incentives;
Use of campus placement offices;
Use of local and ethnic newspapers;
Use of radio and television advertisements.

Only one of the aforementioned efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application. The DOL maintains a list of professional occupations, which were not included in the regulation. Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list. Examples of occupations on the current professional occupations list include: Computer and Information Scientists, Research; Computer and Information Systems Managers; Accountants; Computer Programmers; Computers Software Engineers; Computer Systems Analysts; Database Administrators; Network and Computer System Administrators; Computer Security Specialists; Network Systems and Data Communication Analysts; Biomedical Engineers; Computer Hardware Engineers; Electrical Engineers; Occupational Therapists; Sales Engineers; and Lawyers.

The foreign national and any attorney or authorized representative representing the employer is not permitted to conduct the interviewing or participate in the consideration process for U.S. workers applying for the offered position. The employer's representative who interviews or considers U.S. workers must be the person who normally interviews or considers applicants for the same or similar job opportunities with the employer for all positions, rather than solely for positions that are the subject of a labor certification. If the foreign national owns a part of the employer's business, is related to the employer, or if the employer is one of a small number of employees, the employer must be able to document that there is a bona fide job opportunity available to all U.S. workers.

A U.S. worker is considered able and qualified for the job if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Such period is not defined, as the DOL feels that the period will vary by occupation and other factors.

Notice

Employers filing a labor certification must provide notice to the bargaining representative of those employees of the employer who are in the occupational classification and area of intended employment for which the labor certification is sought. This notice must be provided within 30 to 180 days before filing the labor certification application. If there is not a bargaining representative, the employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive BUSINESS days. In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The notice must explain that it is being provided because the employer is filing a labor certification. The notice must further state that any person may provide documentary evidence regarding the application to the CO of the DOL. Therefore, the notice must also state the address of the CO at the DOL. Notices must also contain the information required for advertisements and must state the rate of pay.

Layoffs

If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid off U.S. workers. A layoff is any involuntary separation of one or more employees without cause or prejudice.

Job Duties

It is still possible to use business necessity to justify certain job requirements. However, generally, job requirements should be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as shown in the O*Net Job Zones. A foreign language requirement may only be included if the person is in an occupation such as a translator or if there is a need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English.

Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity. If the beneficiary is already employed by the employer and only qualifies for the employment based on alternative experience requirements, the certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. Experience with the employer generally cannot be included, unless it is experience in a position not substantially comparable to the position for which labor certification is being sought or the employer can demonstrate that it is no longer feasible to train the worker for the position. The DOL will not consider any education or training paid by the employer unless the employer offers similar training to U.S. workers.

Recruitment Report

The employer must prepare and sign a recruitment report, which describes the recruitment steps undertaken and the results achieved. It must set forth the number of persons hired, the number of U.S. workers rejected, and the lawful job related reasons for such rejections. Though the names of the U.S. workers are not required to be included on the recruitment report, the CO may request the resumes of the rejected workers, sorted by the reasons that the workers were rejected.

Supervised Recruitment

Prior to approving the labor certification, the CO may require supervised recruitment for any position. The employer will place an ad in a newspaper of general circulation or in a professional, trade, or ethnic publication, and take any other measures required by the CO. If placed in a newspaper of general circulation, the advertisement must be published for 3 consecutive days, one of which must be a Sunday. If placed in a different publication, the ad must be published in the next available edition. The ad must be approved by the CO before it is published, and the CO will direct where and when to place the advertisement.

Within 30 days of being notified that supervised recruitment is required, the employer must draft the advertisement and submit it to the CO for review. The ad must direct applicants to send resumes or applications for the job to the CO for referral to the employer. The ad must also: include an identification number and address designated by the CO; describe the job opportunity; contain a wage rate at or above the prevailing wage rate; summarize the employer's minimum job requirements (which cannot exceed any of the requirements on the labor certification application form); offer training if it is standard company procedure; and offer wages, terms, and conditions of employment that are no less favorable than those offered to the foreign national.

The employer must provide the CO with a signed recruitment report within 30 days of the CO's request for such a report. The report must identify each recruitment source by name and document that each recruitment source named was contacted. It must state the number of U.S. workers who responded to the employer's recruitment; state the names, addresses, and provide resumes of the U.S. workers who applied for the job opportunity, set out the number of workers interviewed, and the job title of the person who interviewed the workers; and explain the lawful, job-related reason(s) for not hiring each U.S. worker who applied.

Documentation Must Be Kept For 5 Years

Although employers are only required to submit the ETA Form 9089 if they file electronically, they must keep all records related to each labor certification application for five years. This documentation includes all documents related to the PWD, internal notices, documentation of recruitment efforts, and the recruitment report. If the CO chooses to audit the application, failure to provide the requested documents will result in a denial of the application and may result in up to 2 years of supervised recruitment.

BALCA

The Board of Alien Labor Certification Appeals (BALCA) can review denials and revocations if a request for review is sent to the CO within 30 days of the date of the determination; identifies the particular labor certification determination for which review is sought; sets forth the particular grounds for the request; and includes the final determination. The review request cannot include any additional evidence. BALCA may affirm the denial or revocation of the labor certification, or the PWD; direct the CO to grant the certification, overrule the revocation of the certification, or overrule the affirmation of the PWD; or direct that a hearing on the case be held.

These are the statements which you as the employer certify in the labor certification form:

You have enough funds available to pay the wage or salary offered to the alien;
The wage offered equals or exceeds the prevailing wage and you guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins work will equal or exceed the prevailing wage which is applicable at the time the alien begins work;
The wage offered is not based on commissions, bonuses, or other incentives, unless you guarantee a wage paid on a weekly, bi-weekly, or monthly basis;
You will be able to place the alien on the payroll on or before the date of the alien's proposed entrance into the United
The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
The job opportunity is not:
- Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute involving a work stoppage;
- At issue in a labor dispute involving a work stoppage;
The job opportunity's terms, conditions and occupational environment are not contrary to Federal, State or local law;
The job opportunity has been and is clearly open to any qualified U.S. worker. The employer must clearly affirm that it is ready and willing to hire qualified U.S. workers, and cannot proceed further with its labor certification application if qualified U.S. workers apply for the position (but the DOL cannot compel the employer to hire a U.S. worker).
Also, the employer affirms that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.