Overview

Labor certification is the most common method by which a U.S. company sponsors a foreign national for permanent residence.  The labor certification is the first step of a three-step permanent residence process.  To obtain a labor certification, the sponsoring U.S. company must prove to the satisfaction of the U.S. Department of Labor (DOL) that, after reasonable recruitment efforts, it has been unable to locate a minimally qualified U.S. worker willing to accept the position. 

Successful labor certification applications consist of two equally important processes:  the careful drafting of application forms and the presentation of diligent recruitment efforts.  The application forms are used to set forth information about the position being offered to the foreign national as well as information about the foreign national's educational and work experience.  The application must be drafted so that the position falls within the DOL's accepted parameters in terms of job description, minimum education and experience requirements, and salary.  The documentation must also show that the foreign national met the minimum requirements at the time the labor certification application was filed.

After March 28, 2005, labor certifications can only be filed via the PERM (Program Electronic Review Management) system of the U.S. Department of Labor (DOL).  Cases filed prior to March 28, 2005, under the traditional and the Reduction in Recruitment (RIR) methods, will continue to be processed under the regulations in effect at that time.

What is a labor certification?

When DOL issues an approved labor certification, it is certifying that:

• The employer has attempted to recruit and hire U.S. workers for the job.  (The employer must run advertisements and other types of recruitment, and must provide documentation of efforts to recruit, interview, and hire U.S. workers who are qualified and willing to accept the job.)
• The employer has offered a normal or prevailing wage for the job that will not adversely affect the wages of U.S. workers.
• The employer has not found sufficient qualified U.S. workers to perform the job.  (Applicants who apply for the position are assumed to be qualified.  The burden is on the employer to prove to DOL that they are not qualified and why they are not qualified.)

Common Misunderstandings

The mere filing, or even approval, of a labor certification does not confer any immigration benefit.  It merely is evidence that there is a shortage of U.S. workers for a particular job in a particular geographic area.  The labor certification:

• Does not guarantee permanent residence.
• Does not allow the foreign national to work.
• Does not allow the foreign national to remain in the U.S.

After the labor certification is approved, the company must file an I-140 Immigrant Visa Petition on behalf of the foreign national.  With the I-140 the company submits evidence that the foreign national meets all of the requirements for the position on the labor certificationand that the company had the ability to pay the wage offered in the labor certification from the time of filing the labor certification until the time of filing the I-140 petition.  The company must continue to demonstrate its ability to pay until permanent residence is approved, which could be several years in some cases.

If the I-140 is approved, the foreign national can then file an I-485 Application to Adjust Status to Permanent Residence or can apply for an immigrant visa abroad.  (If the visa priority date is current, the I-140 and I-485 can be filed together.)  The foreign national does not become a Permanent Resident until approval of the I-485 or until entry into the U.S. on an immigrant visa.

Procedures

Under PERM, employers file labor certification applications on Form ETA 9089, either electronically or by mail.  This single application form contains the information formerly presented on Forms ETA 750A, ETA 750B, and the prevailing wage determination form.  No supporting documentation, such as recruitment and prevailing wage evidence, is filed with the Form ETA 9089.  Instead, the employer must maintain such documentation for five years after the date of filing, and must submit it to DOL on request.

Prior to filing the application, employers need to obtain a prevailing wage determination through the State Workforce Agency (SWA) responsible for the area of intended employment.  The employer must offer to pay the foreign worker 100% of the prevailing wage as determined by the SWA, not 95%, as was previously allowed.  The SWA utilizes a four-tier wage system to determine an appropriate wage based on the education and experience required for the position.

PERM applications undergo a “sponsorship check” by DOL staff to ensure that the petitioning employers are valid entities that are actually conducting business.  Then an automated review process checks whether the applications are complete, and applies certain review criteria to the applications to determine which applications should be the subject of a DOL audit.  In addition, certain applications will be randomly audited.

A DOL audit under the PERM regulations consists of a letter setting forth the information that DOL would like to review before making a determination in the case.  The employer is given only 30 days to reply to the audit.  In general, cases approved without an audit are processed within 60-90 days.  The employer, foreign worker, and attorney of record must sign the certified application and retain a copy of the signed application.  The original signed application will later be filed with an I-140 Immigrant Visa Petition with U.S. Citizenship and Immigration Services (USCIS).

Employer Registration

In order for a company to file cases electronically under PERM, a person with actual hiring authority will need to register the company on DOL’s PERM website at www.plc.doleta.gov.  While the registration usually is approved immediately, at times DOL will ask for additional information and documentation.  This can extend the process for several weeks.

Refiling Pending Cases with PERM

Cases currently pending as RIR or traditional labor certification applications may be withdrawn and “refiled” as PERM cases without a loss of the original priority date, but only in certain circumstances.  To retain the original priority date, the newly filed PERM application must be for the same identical position as the original case.  An identical position is defined as a position for which the employer, foreign national, job title, job location, job requirements, and job description are the same as those in the original application.  In situations where the labor certification case will not be “identical” due to changes in the employer worksite location, the offered position, or position requirements, it may be possible to amend the labor certification case prior to withdrawing the case and prior to refiling under PERM.

The PERM conversion provisions carry some serious risks that must be considered.  The PERM “refiling” must meet all PERM requirements.  The employer must conduct a new PERM-compliant recruitment campaign during the six months prior to refiling, making conversion of cases costly.  If the number of qualified and willing U.S. applicants exceeds the number of open positions, the PERM case cannot be filed.  The little-tested definition of “identical” applications also presents a variety of problems.  If the applications are not found to be “identical,” then the refiled application will be processed under the later filing date, the original application will be deemed withdrawn, and the priority date of the original application will be lost.  This could have the effect of substantially lengthening the wait time for permanent residence.  However, for a seventh and subsequent year extension of H-1B status under AC21, USCIS may permit the petitioner to claim the filing date of the original labor certification to establish eligibility for the extension in certain circumstances.

Employers will need to weigh the potential time savings under the PERM program against the added costs and potential risks of withdrawing a pending labor certification application to refile the case under PERM.  A more viable alternative for some employers may be to simply file a PERM application for an employee, without requesting withdrawal of the prior case and without indicating on the Form 9089 that the employer intends to utilize the filing date from a previously submitted labor certification case.  However, this approach could be problematic if DOL takes the position that similar labor certification applications are “duplications.”  This risk could be minimized if the new application offers the employee a different position or employment at a different worksite.

Recruitment Requirements

Unlike the regulations governing the RIR labor certification process, the PERM regulations require three specific forms of mandatory recruitment.  This recruitment must be completed no more than 180 days and no fewer than 30 days prior to the filing of the PERM application:

• Two Sunday newspaper advertisements.  The employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment.  (A newspaper of general circulation is a newspaper where legal notices are typically published.)  An employer may choose to run an advertisement in a professional journal instead of one of the Sunday newspaper advertisements if the position requires experience and an advanced degree, and if a professional journal would normally be used to advertise for the position.

The advertisements must contain enough specificity to apprise applicants of the job opportunity that is available.  The ad need not contain a full job description, minimum requirements, or the offered salary.  However, the ad must include the company name, general location, and contact information, including a mailing address so that applicants without computer access can apply.  Employers may still choose to include a brief job description or job requirements in their ads, in order to minimize the number of unqualified applicant responses.

• Job order with the State Workforce Agency (SWA).  The employer must place a job order with the SWA serving the area of intended employment for a period of 30 days.  Job orders are typically posted through America’s Job Bank or the state equivalent.

• Posted notice.  The employer must post the job opportunity internally at the place of employment for 10 consecutive business days, not including any holidays or weekends, even if the employer is open on those days.

In addition, the employer must use any in-house media, whether electronic or printed, that it normally uses for recruitment for similar positions in the organization.  For example, if the company’s practice is to post internal job opportunities on its intranet, then it should post PERM job opportunities in the same manner.  In-house media recruitment must be posted for the standard time or for 10 consecutive business days, whichever is longer.

In addition to the two Sunday advertisements, the 30-day SWA job order, and the internal posting, employers recruiting for a “professional” position must perform three additional forms of recruitment from the list of options below.  A “professional” position is an occupation for which a bachelor’s degree or higher is customarily required.  The DOL regulations include a list of the occupations that are considered to be professional positions for the purpose of the following additional recruitment requirements:

• Job fairs
• Employer website
• Job search website other than the employer’s (under PERM, an internet ad generated in conjunction with a print ad will count for this purpose)
• On-campus recruiting (if the job requires a degree, but no experience)
• Trade journals or newsletters
• Contracts with private employment firms
• Employee referral programs with incentives
• Posting at a campus placement office (if the job requires a degree, but no experience)
• Local and ethnic newspapers
• Radio and television advertisements

All of the additional recruitment must take place during the 180 days prior to the filing of the PERM application.  Only one of the forms of additional recruitment for professionals may take place in the 30 days prior to filing.

Recruitment Reports

The employer must prepare a signed recruitment report that describes the recruitment steps taken and the results.  The report must describe all recruitment actions, the number of hires, and the number of U.S. workers rejected, categorized by the lawful job-related reasons for rejection.  The report must be retained by the employer for five years after filing and must be submitted to DOL in the case of an audit.

The employer must also retain each resume received in response to the PERM recruitment campaign for five years after filing.  Employers should sort and retain resumes according to the reason each applicant was rejected.   If an employer receives a large number of unsolicited or general applications for employment, we suggest that the PERM recruitment efforts direct applicants to note the specific job title or job code for which they are applying.

Standard for “Qualified” U.S.Applicants

A U.S. worker is considered to be “qualified” for the position if he or she possesses the education, experience, and skills required by the employer for the position, as described on the PERM application.  If a U.S. worker does not possess one of the required special skills listed in the application (for example, experience with a software or hardware platform), but could acquire the skill during a “reasonable period of on-the-job training,” then the lack of the skill is not a lawful basis for rejecting the worker.  The PERM regulations do not define how long a reasonable period of training might be.

A U.S. worker is a U.S. citizen, permanent resident, asylee, or refugee.  Those who have any other type of temporary work authorization (H-1B, L-1, F-1 students, etc.) are not considered U.S. workers, even if they are present in the U.S.

Allowable Requirements for a Position

The PERM regulations make several changes with respect to the requirements that an employer may set for a position.  Under former law, a foreign national could not typically satisfy the experience requirement of a labor certification using experience gained while working for the petitioning employer in the same position for which certification is sought.  The rationale for this rule was that employers must provide U.S. workers with the same opportunity to obtain on-the-job training as is offered to foreign national employees.

In the PERM regulations, DOL creates a more definitive test.  Experience gained by a foreign national with the petitioning employer, or as a contractor working for the petitioning employer, may be used as qualifying prior experience if the experience was gained in a job that is “not substantially comparable” to the job for which certification is sought.  “Substantially comparable” is defined as a job that requires performance of the same job duties for more than 50 percent of the time.  This requirement can be documented by providing organizational charts, payroll records, and position descriptions for both the prior position and the current position, indicating the percentage of time spent on each job duty.

DOL has also liberalized the definition of “employer” for the purpose of determining when prior experience was obtained while with the petitioning employer.  In the past, experience obtained with one of the employer’s overseas branches or with a company that was later acquired by the petitioning employer often could not be used by a foreign national to qualify as experience for the labor certification.  Under the PERM regulations, this experience may be considered.  The PERM regulations define employer as an entity with the same Federal Employer Identification Number (FEIN) as the petitioning employer.  Thus if a foreign national employee gained experience with a related corporate entity, then that experience may be used to demonstrate that the foreign national qualifies for the position at issue in the labor certification, so long as the related entity has a different FEIN than the petitioning employer.

Alien Influence and Control over Job Opportunity

Form ETA 9089 specifically asks the employer whether the employer is a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest.  The form also asks if the foreign worker has a familial relationship with any of the owners, stockholders, partners, corporate officers, or incorporators.  Presumably, a “yes” answer to these questions would trigger a DOL audit to determine whether the job opportunity was bona fide and open to all U.S. workers.  In the event of an audit, the employer must provide business-related documents such as articles of incorporation; lists of corporate officers, titles, positions, and relationships to the foreign worker; the financial history of the company including total investment of each owner; the name of the individual responsible for interviewing and hiring job applicants; and (for companies with 10 or fewer employees) documentation regarding the family relationship between the employees and the foreign worker.

Impact of Layoffs

On Form ETA 9089, an employer must state whether there have been any layoffs of U.S. workers in the area of intended employment during the prior six months in the occupation or a related occupation.  (Area of intended employment means the area within normal commuting distance of the foreign national’s worksite.)  A related occupation is “any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.”  An employer that has experienced such layoffs must document that it notified and considered potentially qualified former U.S. worker employees, and must document the lawful reasons for not hiring the laid off workers.  A layoff is defined as “any involuntary separation of one or more employees without cause or prejudice,” and includes reductions in force, restructurings, and downsizings.

DOL Audits

DOL issues “audit letters” both randomly and based on certain automated review criteria (that remain unpublished).  The audit letters are computer generated documents, often with an addendum containing questions specific to the application.

Employers are given 30 days to respond to an audit letter.  Certifying Officers may, in their discretion, grant one 30 day extension for responses.  If an employer does not provide a timely response or obtain an extension of time in which to respond, DOL will deny the application.  In this situation DOL may order that an employer be required to pursue regular supervised recruitment in future labor certification applications for up to two years.  An order requiring supervised recruitment for future cases is a harsh penalty because it will add significantly to the processing time of an application.  In addition, DOL scrutinizes supervised recruitment applications closely and therefore the process of preparing such an application is more labor intensive and costly.

Certifying Officers may also order supervised recruitment in other cases where they believe that additional scrutiny is required to ensure a proper test of the labor market.  No criteria have been established to limit or guide the discretion of the Certifying Officers in this area.

Schedule A I-140 filings

After implementation of the PERM labor certification filing process, employers may continue to file Schedule A applications with USCIS (rather than with DOL) as part of the I-140 Immigrant Visa Petition process for nurses and physical therapists.  However, there are some changes in the type of notice that must be provided.  The application must contain the PERM application, Form ETA 9089, a prevailing wage determination from the SWA, and evidence that notice has been given to employees (or bargaining representative, if any).  As with cases filed with DOL, the posted noticed must be posted for 10 consecutive business days.  (Weekends and holidays cannot be counted.)  In addition, the employer must use any in-house media that might normally be used for recruitment of similar positions in the company.  The required notice must be provided no fewer than 30 days and no more than 180 days prior to filing the I-140 petition.

The DOL’s PERM regulations make an important substantive change to the requirements for professional nurses seeking Schedule A certification.  In the past, a nurse needed only to show that he or she had passed the CGFNS examination.  Under the PERM regulations, in place since March 28, 2005, nurses must present full CGFNS certification.  This is an important change because obtaining full CGFNS certification requires nurses to pass an English language examination and to await a review of their educational credentials.  This adds several months to the pre-filing preparation required of nurses.  A nurse may also qualify for Schedule A certification by showing that he or she possesses a full and unrestricted nursing license in the state of intended employment, or that he or she has passed the NCLEX-RN examination.

Application Procedures

Case Assessment

1. Company and foreign national complete and forward to McCown & Evans (Firm) information and documents to begin case.
2. Firm reviews job requirements and foreign national's credentials.  Firm works with company to draft job description and requirements that conform to company requirements and Department of Labor guidelines.
3. Firm obtains prevailing wage determination from the DOL State Workforce Agency.
4. Firm advises company on necessary recruitment recruitment and develops a recruitment plan.

Application Preparation

1. Firm drafts application forms and submits them for company and foreign national's review.
2. Firm files application forms electronically with the DOL.
3. DOL reviews and approves the application.  If the DOL determines that the application is deficient it may issue an audit and, depending on the response, may approve or deny the application.