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PERM Labor Certification

Overview

The labor certification procedure is intended to assure that the employer is not seeking to employ a foreign national when qualified U.S. workers are available to fill the position, and that the employer has not offered wages or working conditions to the foreign national that adversely affect the wages or working conditions of U.S. workers. If the labor certification procedure locates any U.S. workers who meet employer's minimum requirements (education, experience, training) for the position, the application to obtain permanent residence for the alien employee will not be approved.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified, available, willing and able, although it will not force the employer to hire such worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating U.S. job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

The DOL requires that any U.S. worker who applies for the job and who meets the actual minimum requirements for the job be considered qualified, resulting in denial of the labor certification should that applicant also be available, able and willing. Further, the DOL will consider a candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. This requirement is the principal distinction between the labor certification procedure and the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one who meets the job’s minimum requirements.

The first step before filing the PERM labor certification application is obtaining a prevailing wage from the SWA (State Workforce Agency). The employer must pay at least 100 percent of the prevailing wage offered in the area of intended employment.

Recruitment

In the six months prior to filing an application, employers are required to place a job order with the SWA, place a notice of posting at the worksite, and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods. Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit.

The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application. One exception to the Sunday newspaper-advertising requirement is when an employer can document that a rural newspaper that is appropriate for recruiting has no Sunday edition in the area of intended employment. The exception applies only to rural newspapers. If a suburban newspaper has no Sunday edition, the employer must publish a Sunday advertisement in the most appropriate city newspaper that serves the suburban area. Another exception to the Sunday advertising requirement is that if the job requires experience and an advanced degree, and a journal advertisement is appropriate for the job opportunity, then the employer has the option to use a journal advertisement in lieu of one of the Sunday print advertisements.

Employers of professionals are required to conduct three additional types of recruitment, which are:

Job fairs
Employer's web site
Job search website other than the employer's
On-campus recruiting
Trade or professional organizations
Private employment firms
Employee referral program with incentives
Campus placement offices
Local and ethnic newspapers
Radio and television advertising

The employer must use three different types of recruitment on the list of additional sources. The online job listing, even if posted in conjunction with a print advertisement, qualifies as an additional recruitment step. All of the additional steps must take place within six months of filing the case and only one of the additional steps may take place within 30 days of filing.

Employers under PERM will need to prepare a recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The Certifying Officer (CO), after reviewing the employer's recruitment report, may request the US workers' resumes or applications, sorted by the reasons the workers were rejected.

Post-PERM Steps

Once a petition is filed, the form must be printed out and signed by an employer immediately. A copy of the signed form must be maintained in the employer's files and the original signed application must be submitted to support the I-140 immigrant petition that is submitted to the USCIS.

Following submission of the PERM labor certification application, the DOL may perform an audit of the employer. Audits will either be based on various selected criteria or conducted randomly.

If DOL audits a case, then it will send an audit letter requesting additional documentation to be submitted within 30 days of the audit letter, although the (Certifying Officer) CO has the discretion to grant an extension by up to 30 days. The documentation will be reviewed by an Employment and Training Administration (ETA) official and either certified or denied. The CO also has the authority to request additional information before making a final determination. In addition, the CO has broad discretion in audited cases of ordering the employer to conduct supervised recruiting.

If the CO decides that the labor certification should be granted, the officer will send the certified application and complete Final Determination to the employer or the employer's attorney or agent indicating that the next step is to file the form along with an immigrant petition to the U.S. Citizenship and Immigration Services.

If the CO decides the case is to be denied, a Final Determination shall issue. The employer will have 30 days to appeal the determination. A new application may be filed at any time, although a new application in the same occupation for the same worker cannot be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.

If the CO finds that the employer failed to produce required documentation, the documentation was inadequate, finds that a material misrepresentation was made, or finds it otherwise appropriate, the employer may be required to conduct supervised recruitment in future labor certification filings for a period of up to two years from the date of the Final Determination.

If you wish to investigate your eligibility for legal benefits discussed on this site, please consult with Attorney Monique Kornfeld:

Phone: 617-323-5049 • Email: mkornfeld@mhkimmigration.com • Newton, MA