Labor Certifications - PERM

Info from Attorney Robert Baizer

 

 

The usual route for persons to obtain permanent resident status through their work is for their employer to work with an attorney to obtain a labor certification. Our office has successfully handled hundreds of such applications

 The labor certification is a finding from the U.S. Department of Labor (DOL) that:

    The employer has a job opening, 

    For which they are offering the prevailing rate of pay, 

    For which the alien worker is qualified, and,

    For which they have recruited and have been unable to find a qualified U.S. worker. 

The securing of a labor certification is a procedurally complex process. It requires strict adherence to the rules and policies of the U.S. Department of Labor. 

PERM

Department of Labor's system for making this decision is conducted via an online application procedure called PERM.     

The Department of Labor posts some summaries of its complex rules, and FAQ's about the process, at its website. Some aspects of the PERM system are as follows:

 1. Application format.- Use of a ten page form, the ETA 9089, which may be submitted either online or by mail.

  2. Prevailing wage.

-Before filing the labor certification with the U.S. Department of Labor, one must first obtain a prevailing wage determination from the agency.

-The employer must offer at least 100% of the wage found to be prevailing.

-The DOL prevailing wage system has at least 4 levels of pay for the occupation.  The DOL online survey (found at  http://www.flcdatacenter.com/ ) is updated annually.

-The online wage library survey will be the default wage looked to in making the determination, but employers will be entitled to use alternative surveys that meet regulations' survey criteria.

-The DOL considers that any deductions for the legal costs would negatively impact alien worker's wage, and therefore requires that the employer, not the worker, should pay the attorneys' fees involved in a labor certification application.

 3. Recruitment

-Must be done in the period from 30 to 180 days prior to filing.

- Must include 2 Sunday newspaper ads in the largest newspaper publication in that area (these ads need not include the wage offered, but must identify the employer and the type of position).

- Must include a state job system order placement of at least 30 days duration.

- For professional jobs, meaning those that require at least a bachelor’s degree, three additional types of recruitment must also be done, which must be three of the following –

                         Job Fair

                        On-campus recruitment if no experience is required

                        Posting on employer’s web site

                        Advertisement in professional association

                        Listing on private job search web site

                        Listing with private employment agency

                        Advertisement in employee referral program

                        Campus placement office

                        Local or ethnic newspaper ad

                        Radio & TV ad

 -         Evidence of recruitment, a signed recruitment report, and other types of required evidence will not normally be submitted with the application, but instead must be retained by the employer for a period of five years, to be ready in case of an audit by the Department of Labor

 Supervised Recruitment

             The rule provides that in any case in which the officer considers it to be appropriate, post-filing supervised recruitment may be required of the employer.  The Dept. of Labor states that they anticipate that the decision on this issue will usually be based on labor market information.  This means that, if their data shows that there are, in fact, available U.S. workers in the occupation in the employer’s area, more recruitment can be required, and its results will be closely examined by the officer.  

 4. Posted Notice

The employer, before filing, must have posted a notice of the job opportunity at its place of business, in a place visible to employees, for 10 business days, to give the workers notification of the application.  The language of the notice must meet detailed guidelines.  If there is a union, the union must be given the notice.

 5. Occupational Classifications & Requirements

 The job opening and its stated requirements will be evaluated in comparison to the U.S. Department of Labor’s O*NET job classification system. 

 If the employer’s stated minimum requirements for the position exceed those stated as normal in the O*NET system, then the employer will have to assemble evidence sufficient to establish that it has a “business necessity” for the additional requirements.

A foreign language requirement may be shown to be a business necessity if proof establishes that it is genuinely required for the employer’s communications with a majority of its customers, contractors or other employees.  However, a foreign language requirement will usually result in the DOL requiring that a higher level wage be offered.

Experience gained by the alien with the same employer cannot be used to satisfy an experience requirement for the position, unless the employer can assemble proof to establish that the worker is now in a dissimilar job – one whose duties are different more than 50% of the time.    The “same employer” means an employer having the same federal employer ID number.

 6. Audits & Retention of Documentation

Since evidence of recruitment, the recruitment report, evidence of business necessity, and other types of evidence will not normally accompany the application, the rule requires that the employer save this evidence for a period of five years in order to respond to an “audit” by the Department of Labor to verify the existence and sufficiency of the various types of evidence.   

Audits may take place before or after a decision on the application.  Employers must respond to an audit request within 30 days.

 7. Qualified U.S. Worker

The basic law in the statute that authorizes the labor certification process is designed to create a process to test the labor market so that the Department of Labor can determine whether or not there are any qualified U.S. workers, willing and available for the position.  This determination is based only upon whether the recruitment has discovered a U.S. worker who meets the minimum qualifications for the position - if so, then the application will be denied, regardless of whether the alien worker is more qualified.    (An exception allows employers of college instructors to choose the most qualified person.)   

The DOL's regulation directs that a U.S. worker might even be considered qualified if he does not meet the minimum qualifications for the position, if he can achieve such qualification through a “reasonable period of on-the-job training”.  

 

 ONLY THE BEGINNING

After securing the labor certification, there are two more steps in the process. First, the employer must submit a visa petition to the Immigration Service, and then the alien worker must apply for change to permanent resident status. Completing these steps can take many years, due to the long visa waiting lists, especially in the "EB3" immigration category.

 

 

Related resources

• U.S. Dept of Labor's wage survey