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. 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
approximately 4 months. 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;
- other job search web site (such as the newspaper’s web site, Monster.com, Hotjobs.com,
Jobvertise.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. 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. The
employer must document the reasons why the U.S. worker does not meet the
minimum requirements, as well as every contact made to/from the U.S. worker.
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.
The U.S. Department of Labor (Home Page)
http://www.dol.gov
