Labor Certification Application Processing Under PERM
This memorandum summarizes the labor certification process and identifies the steps we need to take in order to prepare the Labor Certification Application, and ultimately obtain the "green card" (lawful permanent residence).
In order for an employer to obtain an immigrant visa for an employee (as a sponsor), United States law requires that the employer apply for a certification from the Department of Labor ("DOL") that there are no U.S. workers qualified to fill the foreign national's position and that the employment will not adversely affect the wages and working conditions of U.S. workers in similar positions. This "labor certification" process is accomplished by recruiting to fill the open position and filing an Application for Alien Employment Certification (ETA‑9089) with DOL.
The labor certification is the first in a three step process to becoming a legal permanent resident that involves both the Department of Labor (DOL) and USCIS. The law requires that the foreign national be employed by the petitioning employer at the time of granting of legal permanent residency. There are, however, some exceptions to the rule that also depend on the timing of the departure. If the foreign national leaves his/her employer or makes a significant job change with the same employer, the process may have to be started all over again.
The law requires that the employer file a labor certification application on the employee's behalf with the DOL. The employer is required to pay for all legal and other expenses, including advertisements, related to the Labor Certification PERM process. Pay-back provisions are no permissible under the new DOL ruling.
That application must satisfy the DOL that there are no minimally qualified U.S. workers who could perform the employee's job, as it existed when the employee began employment with the employer. To satisfy these requirements, our preparation of the labor certification will focus on four areas:
- the skills necessary to perform the employee's job
- how the employee acquired those skills prior to joining his/her current employer
- how the employer recruited for the employee's position
- whether there were any qualified applicants for the employee's position
The Labor Certification application is a process in which the employer will have to recruit for this specific position. The employer must show the Department of Labor (DOL) that the company has engaged in substantial recruitment for similar positions immediately preceding the application for labor certification. Companies can establish a pattern of recruitment by submitting copies of print advertisements, Internet listings, headhunter information, and other relevant recruitment efforts. Finally, once recruitment is conducted, the employer will review resumes to determine if any of them should be reviewed by the foreign national's manager. We assist the employer during this process. BY LAW THE FOREIGN NATIONAL IS NOT PERMITTED TO PARTICIPATE IN THIS PART OF THE PROCESS. If no qualified applicants are identified, we will file the application with the DOL electronically.
The labor certification process requires payment of certain wage rates, depending on geographic locations and the job skills required. If any of these changes significantly, the employee may need to start over with a new labor certification. The Department of Labor now requires that companies pay at least 100% of the prevailing wage as determined by the DOL for the specific position, duties, requirements, and work location. The company will need to show that it has the ability to pay the employee the wage from the time of filing of the Labor Certification.
The labor certification will be filed electronically after all recruitment has ended. The anticipated processing time frame for approval is between 45 and 60 days. As noted, the company will be required to conduct a recruitment process. The company is required to comply with the following recruitment processes, which can all be done simultaneously:
- In-house notice of posting for 10 consecutive business days;
- Job Order with the SWA (State Department of Labor) for at least 30 days;
- 2 Sunday advertisements in a major local newspaper;
- Posting on all in-house media (company's intranet, etc.) normally used to recruit for this type of position; and
- 3 additional advertisements selected from the following list:
- employer's external web site for 30 days;
- other job search web site (such as the newspaper's web site, Jobvertise.com, America's Job Bank, Monster.com, Hotjobs.com, etc.);
- job fair;
- on-campus recruiting;
- trade or professional organizations;
- private employment firms;
- employee referral program with identifiable incentives;
- notice at campus placement (for positions requiring only a degree);
- local and ethnic newspapers (for specific jobs only);
- radio and TV ads.
Once the series of advertisements has run, we must wait thirty days (the "recruitment period") before the ETA and recruitment results can be submitted to the DOL, where the decision on the labor certification is made. The employer is required to keep documentation of the recruitment results and a copy of the certified Labor Certification at the work location for a period of at least five years.
Applicants responding to the advertisement will be directed to send their resumes directly to the employer. Resumes must be reviewed and responded to in a timely fashion. Any qualified, available U.S. worker who responds to the advertisement must be rejected only for acceptable, job‑related reasons. It is not enough that the foreign national is the most qualified applicant; if any U.S. worker with minimum qualifications applies for the position, failure to offer the position to that U.S. worker will result in denial of the labor certification application. Often, many applicants will not have the minimum qualifications and may be rejected without an interview. The employer must submit all of the resumes to the DOL and keep detailed written records to document that the applicants did not have the minimum requirements. We assist the employer in these review procedures because DOL has a rigid practice as to format.
The employer may reject a U.S. worker on the basis of his or her resume only if it clearly does not meet the minimum qualifications set forth in the job description in the ETA form. Therefore, if the resume is inadequate for that purpose, the employer must occasionally interview applicants. When we are in the recruitment phase, we will send detailed instructions to the employer regarding reviewing the resumes, conducting interviews and sending rejection letters.
While it is extremely important to ensure that the minimum requirements are reflected in this application, it is at the same time important to remember that the company must be able to demonstrate the “business necessity” of its requirements for the position. To establish the business necessity of a particular job requirement, the company must demonstrate that the job requirement is essential to perform the required job duties in a reasonable manner. It is not sufficient to show that the requirements merely enhance the efficiency and quality of the company's work. Therefore, we should endeavor not to include any requirement which the DOL may regard as excessive, which we will have difficulty justifying, unless you are convinced that the absence of that requirement would result in an applicant's being deemed to qualify when in reality he ore she could not perform the required duties.
As a general rule, the DOL regulations prohibit the company from requiring that a U.S. applicant have any experience or qualifications which the prospective employee did not have at the time he/she accepted the job. The reason is that if company hired the individual and trained him/her to function at the current level, the company could also hire a U.S. worker and provide similar opportunities.
After DOL reviews the completed application, the employer and/or the attorney will receive a decision. If an application is complete and not selected for an audit, the application will be certified and returned to the employer for signature. If the job is considered unusual; for example, requiring an odd combination of skills, the employer may receive a denial. If an application is selected for audit, the employer will be notified and required to submit documentation specified in the regulations to verify the information stated in or attested to on the application. Upon timely receipt of an employer's audit documentation, it will be reviewed by the DOL. If the employer does not submit a timely response to the audit letter, the application will be denied.
If the response is complete and consistent with the employer's statements and attestations contained in the application, and not deficient in any material respect, the application will be certified and the employer will be notified. If the audit documentation is incomplete, is inconsistent with the employer's statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial will be issued to the employer. Only the Certifying Officer will have the authority to request additional information before making a final determination. Of course, we will assist the employer with preparing the response letter and supporting documentation to the Department of Labor.
Immediately after approval of the labor certification application we will prepare and submit an Immigrant Visa Petition to the Immigration Service on behalf of the foreign national employee. Processing time for the petition is about 60 to 360 days. After approval of the immigrant visa petition, we prepare and submit the Applications for Permanent Residence ("green card applications") for the foreign national and his/her family. Processing time in is currently 12 to 24 months for the two processes.Employment and travel privileges are available to the foreign national employee and each family member during the pendency of the green card applications.