Labor Certification and PERM Filing
Foreign person who are offered permanent employment in the U.S. must establish a basis of eligibility for filling an employment based preference petition, either through
- Labor certification (employment based second and third preference)
- Exemption from labor certification (employment based first, fourth and fifth preference) or
- Under a Schedule A category
Foreign persons who have been offered permanent employment in the U.S., and who do not meet the criteria for exemption from labor certification, must obtain Alien Employment Certification, commonly referred to as labor certification from the U.S. Department of Labor (DOL). The DOL must be satisfied that there are no qualified U.S. workers available to fill the permanent job offered to the foreign person, and that the working conditions and wages offered for the position will not have adverse effect on the U.S. labor market. Once the labor certification is approved, it serves as the basis for filing an employment based second or third preference petition with the USCIS.
Standards DOL (Department of Labor) Takes to Exclude Foreign Workers
In issuing such certifications, the DOL applies two basic standards to exclude foreign persons
- If U.S. workers are able, willing, qualified and available for the position and/or
- If the employment of a foreign person will adversely affect the wages or working conditions of U.S. workers similarly employed
“Lawful U.S. workers“ include U.S. citizens, permanent residents, asylees, and refugees.
Requirements to Get Labor Certification
To obtain labor certification, the employer must demonstrate that he or she has followed a precise program of recruitment that tests the local labor market for qualified and available U.S. workers in the geographic area where the job will be filled. The employer has to prove to the DOL that:
- The job being offered to the foreign person is available and is otherwise open to persons in the United States
- There are no unreasonable or unnecessary conditions placed on the position and
- The wage offered is at least the prevailing wage in the community.
Reduction in Recruitment
In certain cases, it may be possible to avoid the labor certification process by proving to the DOL that the employer has, during the period of at least six months, attempted to fill the position through normal and customary efforts and has failed to find qualified workers.
What is the Effect of Reduction in Recruitment during PERM process?
If the employer has, during the period of at least six months, attempted to fill the position through normal and customary efforts but has failed to find qualified workers, it may be possible to avoid the labor certification process. Under these circumstances, it may be possible to have the DOL agree that there is no need for a labor certification application since the employer has made reasonable and good faith efforts to fill the position. If the employer can document these good faith efforts over a sustained period of time, it will request permission for a Reduction in Recruitment certification that will accept the employer's efforts as dispositive of the labor market test. This will shorten the processing time for labor certification and this seems to be the wave of the future because of budgetary considerations.
Measures to Protect U.S Workers
DOL has taken some measures to protect U.S. workers: (1) No Tailoring the job; (2) No unreasonable conditions; (3) Prevailing wage requirement; (4) Can't hire a foreign person just because he/she is more qualified; (5) Extra documentation for recent layoff.
DOL Measures to Protect U.S. Workers?
DOL has several policies to protect U.S. workers in the process of applying labor certification.
A. No Tailoring the Job:
The DOL will be careful to ensure that the U.S. employer does not tailor the job requirements to a foreign person's particular experience. A U.S. employer must justify any unusual job requirement based on a business necessity, not just a personal preference.
B. No Unreasonable Conditions:
The DOL will deny the labor certification if the employer requires special conditions that only a foreign person can or is willing to fulfill, unless those conditions are essential to the business. Therefore, in the United States, a job requirement that a person must speak a particular foreign language is considered prima facie unreasonable and can only be overcome by proof that knowledge of a foreign language is essential to the proper performance of the job.
C. Prevailing Wage Requirement:
A U.S. employer must offer the job to U.S. workers at the prevailing wage for the job. The prevailing wage is based on the geographic area of employment and on the job duties and requirements. The DOL in the state of intended employment determines the prevailing wage.If a U.S. employer disagrees with the prevailing wage set by the DOL, he or she can submit evidence, such as an independent survey, to challenge the DOL prevailing wage determination.
D. Can't Hire Foreign Persons Merely Because They Are More Qualified:
The U.S. employer does not have the right to offer the job (on the basis of a labor certification) to the foreign person simply because the U.S. worker is not equally skilled. A U.S. worker who does not meet all of the requirements of the job cannot be rejected, if that U.S. worker could receive job training or he or she is able to perform the job duties in a normally acceptable manner given his or her background. The U.S. employer can only offer the job to the foreign person if the U.S. worker candidate does not meet the minimum qualifications for the job. The DOL establishes these minimum qualifications and they are all listed in a publication entitled The Dictionary of Occupational Titles. (DOT).
E. Extra Documentation for Recent Layoff:
If there was layoff within six months prior to the filing of the application for labor certification, the employer must attest to and document notification and consideration of U.S. workers who were laid off and who worked in the same occupation or a related occupation to the one for which certification is being sought.
What is PERM (Program Electronic Review Management)?
In 2004, DOL issued final regulations that established a new labor certification procedure, termed “Program Electronic Review Management“ (PERM). PERM took effect in March 28, 2005, with intent to facilitate faster determinations. Also, more measures are being designed to protect U.S. workers under PERM.
The PERM processes requires that all recruitment be conducted prior to filing the application and recruitment must be conducted within 6 months of filing.
What are the Initial Steps of PERM Filing?
Employers (or their lawyers) need to take the following initial steps to file labor certification application with PERM system:
A. Register Online:
Employers must register through the PERM online system to file electronically. The employer can start the filing process after the registration is approved.
B. Filing: ETA Form 9089:
The complete labor certification application consists of one form, ETA Form 9089--the Application for Permanent Employment Certification. Labor certification application is encouraged to file electronically. The application can not be submitted more than 180 after the first recruitment step listed on the form. In Form ETA 9089, the employer has to describe the job in detail, indicate minimum education and experience and any special requirements.
C. Supporting Documentation Needs not be Filed:
Supporting documentation is not submitted with the application; rather the employer retains the documentation in the event of an audit.
Advertisement: 30-day Job Order and on Newspaper
After it receives the employer's application for labor certification, the Employment Service verifies that the job was offered at the prevailing wage, then posts the job opening on its recruitment system for thirty days--State Workforce Agency (SWA) serving the area of intended employment. At the same time, the employer must advertise the position in a newspaper or a trade journal.
Description and Period Requirements of PERM Filing Advertisement
DOL has some special requirements of the advertisement of the employment under PERM system.
A. Description on the Ad:
The advertised position must include the job location, the employer's name, a job description of the position that is specific enough to apprise U.S. workers of the position, and direct applicants to report to, or send resumes to the employer.
B. Days Requirements:
At least thirty days must elapse between the last day of the required posting and job order with the submission date.
DOL Initial Processing and Audit
DOL software is programmed to review the application upon submission, and that software has set rules with regard to the information provided in key fields. The system generates a denial under these set rules if the information provided on the application violates the rules. If the application is deemed acceptable for processing after initial screening, the DOL computer system will then review the application based upon various selection criteria that will allow problematic applications to be pulled from the system for an audit. The DOL has indicated that it has incorporated identifiers into the processing system that will be used to select cases for audit based upon program requirements. In addition, the computer system will also randomly select some applications for audit.
Common Examples of System-programmed Denials
Common examples of rule violations that will generate system-programmed denials or may lead to denials during the final review stage of processing include the following:
- the prevailing wage determination obtained from the SWA has expired;
- the job order placed with the SWA did not run for thirty days;
- the application is submitted less than thirty days from the end of completion of the job order, job posting, or last recruitment step; or
- the application listed recruitment in the Form 9089 that took place outside the 180-/30-day recruitment period.
As part of the initial review of the application a sponsorship check will also be conducted under which DOL personnel will contact the employer by email or by phone to make sure they are offering a job to the foreign worker.
Approval of the Application
Provided an application has not been selected for audit and the sponsorship check is completed, the application is sent to an analyst for final review. The analyst conducts a final check to determine that the application contains no errors or inconsistencies and that there are no issues that warrant an audit. If there are no rule violations and no issues warranting issuance of an audit letter, the application will be certified and returned to the employer by the DOL analyst.
Four Results of DOL Initial Processing-Possibility of Audit
- non-audited applications (that is, applications that have not been selected for audit and are awaiting final review by a DOL analyst). If, as a result of the recruitment efforts, the employer is unable to locate a U.S. worker who is able, willing, qualified, and available to fill the position, the DOL certificate officer may issue the labor certification. DOL estimates that an application not selected for audit, the employer will be approved within 45-60 days;
- audited applications (applications for which an audit letter has been issued);
- applications that were denied and are on appeal (including cases for which motions to reconsider and/or motions to review have been filed);
- “government error“ motions to reconsider (motions to reconsider filed in connection with cases that were denied as a result of government error). If a case exceeds the normal processing time, the employer/attorney can submit an inquiry to the Atlanta NPC.
Who May be Selected to be Audited in the PERM Labor Certification?
There are several reasons why a particular case is selected for audit. Cases may be flagged for audit on the basis of a review of the application, or randomly selected by the DOL's computer system. The audit notice will specify the documentation that must be submitted. The employer has to respond in 30 days or the application will be denied. The DOL has declined to specify the criteria for when audit letter will be issued. The agency targets for audit application that appear to have problematic issues, for example, applications listing foreign language requirements or requirements above SVP (standard vocational preparation) level for occupation, etc.
What Should an Employer do When Selected for Audit after filing PERM?
In cases selected for audit, the employer will be required to submit supporting documentation establishing compliance with each of the requirements of the labor certification, including additional “reasonable“ requirements imposed by DOL certifying officer. The DOL has issued more audit notices in recent years. It is anticipated that increased audit activity will continue into the future. There is substantial documentation needs to be provided by the selected employer.
What are the Key Elements of the Employer's Audit File in a PERM filing?
No matter for what reason, once an employer is selected to audited, he/she must provide substantial documentation to prove he/she followed the PERM requirements in filing and recruiting employees. The following are the key elements of the employer's audit file:
- Copy of certified application (original submitted to USCIS along with I-140).
- Evidence of permanent, full-time employment (for example, position descriptions and payroll records if position currently exists or documentation that a change in the employer's business caused the job to be created if new position involved.)
- Notice to the bargaining representative (a copy of the letter and a copy of the application form that was sent to the bargaining representative);
- Documentation of the notice of filing (a copy of the posted notice and statement regarding where it was posted and copies of all notices posted through in-house media);
- evidence of placement of job order (copy of the job order from the SWA's online job listing site or a copy of the job order provided by the SWA);
- documentation regarding bona fide job opportunity, if applicable (including business-related documents, a list of corporate officers, the financial history, including the total investment of each individual, the name of the individual responsible for interviewing and hiring job applicants, and documentation of any family relationships between the employees and the alien);
- prevailing wage determination from NPWHC;
- documentation of print ads (for example, tear sheets or proof of publication furnished by the newspaper);
- documentation of additional recruitment for professional positions (job fair ads that list the employer, copies of ads on employer's website or job search websites, copies of job notices issued or posted by the college placement office, copies of ads in trade newsletters or journals, copies of contracts between the employer and the private employment firm and copies of advertisements placed by the firm, copies of employer notices or memoranda advertising employee referral program and notice to employees regarding job opening, copy of the employer's notice provided to campus placement office, copy of ads in local and ethnic newspaper, copy of radio or TV ad, and confirmation from station indicating when ad was aired);
- recruitment report (describing the recruitment steps undertaken and the results achieved, the number of hires, and if applicable, the number of U.S. workers rejected, categorized by the lawful job-related reasons for such rejections.
- r?sum?s for job applicants, job applications, and applicant record;
- when special skills listed on application and applicant were rejected for lack of these skills, information concerning the length of the training that would be required to acquire such skills and the economic burden of such training;
- notice and consideration of recently laid-off workers (letters sent to the workers);
- evidence that foreign national qualified for position at time of hire (r?sum?s, letters from prior employers, school transcripts) or qualifying experience gained with employer was in a position not “substantially comparable“ to offered position (position descriptions, the percentage of time spent on various duties, organizational charts, and payroll records);
- business necessity documentation justifying excessive education and experience requirements;
- business necessity documentation justifying foreign language requirement, combination of occupations, or live-in requirement.
Results after Audit - Approval, Denial or Supervised Recruitment
If the DOL determines that the documentation submitted by the employer in response to the audit letter is complete and consistent with responses on Form 9089, it will certify the application. If the documentation is deemed deficient to the DOL, the certification may be denied. There are three results after audit: application approved, application denied or supervise recruitment.
What Happens if the PERM Application is Denied or Ordered Supervised Recruitment after Audit?
Denial: If, after reviewing the employer audit file, the DOL issue an denial of the application, PERM provides that the employer may file a request for reconsideration within 30 days from the date of issuance of the denial. Otherwise, A denial may be appealed to the Board of Alien Labor certification Appeals. (BALCA). In addition, under the final PERM rule, there is no waiting period imposed on employers after a denial of certification. A new labor certification involving the same individual and the identical job opportunity may be filed at any time unless a request for review by BALCA (Board of Alien Labor Certification Appeals) is pending.
Supervised Recruitment: Alternatively, the certifying offer may request additional documentation or order supervised recruitment. When supervised recruitment is ordered, all previous recruitment carried out before the employer filed its PERM application is disregarded, and an entirely new recruitment campaigns is begun under the direction of the certifying officer.
(NOTE) Supervised Recruitment may be ordered without audit, especially in industries and geographical areas where large-scale layoffs have occurred. An order may be issued for future filing in certain instances.
Effect of Labor Certification
Once the case is certified by the Labor Department, the applicant's employer can file an I-140 petition with the USCIS. The labor certification is not an authorization of any kind, and only serves the limited purpose of establishing that there are insufficient available, qualified and willing U.S. workers to fill the position and that the noncitizen's employment will not have an adverse effect on the wages and working conditions of similarly situated U.S. workers. The certification once issued, is valid indefinitely as long as the job remains available.
Can Labor Certification be Amended after Approval?
DOL policy bars amendment of the approved labor certification. Once an application has been electronically submitted or mailed, it is considered final and no changes to the application will be permitted, including typographical errors as well.
Pay Attention to Changes surrounding the Certification that May Affect its Validity
If changes occur in the facts surrounding the certification, it is the role of the USCIS to evaluate those changes to decide whether they affect the validity of the certification. If not, no changes to the certification are needed. If the changes do affect the validity of the certification, USCIS will deny the preference petition.
What Changes Will Require Evaluation by the USCIS of the Continuing Validity of the Labor Certification?
Most of the changes requiring evaluation by the USCIS of the continuing validity of the certification relate to the following issues:
- The employment relationship is terminated, affecting the identity of the foreign person named in the certification.
- The location of the job opportunity has changed, either because the employer has relocated or the foreign person has been transferred to a different work site of the employer.
- The name or ownership of the employer has changed.
- The job duties or salary level of the position have changed substantially.
Current Trends of PERM Application
While the conditions of the local job market will determine the possibility of obtaining labor certification, certain trends are apparent.
- Visas More Available for Skilled Workers: As a matter of practical reality, immigrant visas are only available for persons whose jobs require a minimum of two years more training and experience in order to perform the job. This is caused by the backlog in the category of other workers for the third employment-based preference. It is so long that most job offers will not survive the long delay.
- Geographical Areas and Job Types are Important: The job market will be affected by the number of jobs in the particular area. As an example, it may be very difficult to prove that there is a job shortage for hotel managers in a resort area because these jobs and geographical areas attract many qualified U.S. candidates. Generally, the U.S. economy and the law favor foreign persons who have particular job capabilities and skills that are not readily obtainable in the U.S. labor market.
- Jobs at Opposite Ends of Spectrum Have More Chance of Approval: It is generally easier to obtain a labor certification for job skills that occupy the opposite ends of the spectrum. For example, a scientist who is experienced in advanced molecular biochemistry will probably receive a labor certification. Likewise, an attendant for a coin operated laundry at the prevailing wage may not be able to find willing U.S. workers to fill the position because of the low wage and unfavorable job conditions.