PERM LABOR CERTIFICATION

PERM LABOR CERTIFICATION

Permanent Labor Certification is issued by the Department of Labor (DOL) to allow an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition, Form I-140, to the USCIS, the employer must obtain an approved Labor Certification Request from the DOL's Employment and Training Administration (ETA). The current system for submitting a Labor Certification is called PERM or Program Electronic Review Management. This is the first step for many employment-based green card cases and is required for almost all applicants under the employment-based immigrant preference categories EB-2 and EB-3.

By approving a Labor Certification, the DOL is informing USCIS that there are no qualified U.S. workers able, willing and available to accept the open job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

REQUIREMENTS FOR FILING A PERM LABOR CERTIFICATION
  • Applications filed on or after March 28, 2005, must file using the PERM process;
  • The employer must hire the foreign worker as a full-time employee;
  • There must be a bona fide job opening available to US workers;
  • Job requirements must adhere to what is customarily required for the occupation in the US and may not be tailored to the worker's qualifications. In addition, the employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
  • The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
PERM FILING PROCEDURE
  1. Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application will describe in detail the job duties, educational requirements, training, experience and other special capabilities the employee must possess to do the work, as well as a statement of the prospective immigrant's qualifications.
  2. Signature requirement. Applications submitted by mail must contain the original signature of the employer, alien and preparer (if applicable) when they are received by the National Processing Center (NPC). In order to be valid, applications filed electronically must be signed immediately by the employer, alien and preparer (if applicable) upon receipt of the labor certification issued by ETA.
  3. Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) which has jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the following SWA-provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date and the expiration date.
  4. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application. The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations published in Appendix A to the preamble of the final PERM regulation. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of US applicants and provides the number of US applicants rejected in each category. The recruitment report does not have to identify the individual US workers who applied for the job opportunity.
  5. Audits/requests for information. Supporting documentation need not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
  6. Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
  7. Re-filing. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may re-file by withdrawing the original ETA Form 750 application and submitting, within 210 days of withdrawing, an ETA Form 9089 application for an identical job opportunity which complies with all requirements of the new PERM regulation.
  8. Online filing. The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
  9. Registration. To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. By completing an Employer Profile, you will be able to:
    • Save time by pre-populating your general information.
    • View the status of your labor certification applications online.
    • Update your profile information online.
    • Track newly submitted labor certification applications.
    • Email saved labor certification applications to others within the company.
    • Add new users to your account.
    • Withdraw labor certification applications no longer needed.
  10. Filing by mail. National Processing Centers have been established in Atlanta and Chicago. The address and contact information for each National Processing Center and the states and the territories within their jurisdictions are provided on the Department of Labor website.

Approvals. If the appropriate National Processing Center approves the application, the ETA Form 9089 is “certified” (stamped) by the Certifying Officer and returned to the employer/employer representative who submitted the application.

Frequently Asked Questions

What does PERM require?

Briefly, PERM requires:

  • Prevailing Wage Determination from the State Workforce Agency
  • Job Order posted with the SWA for 30 days
  • Internal notice of job opportunity
  • Mandatory Sunday newspaper advertisements
  • Additional advertisements for professional positions

What is the Prevailing Wage, and how is it obtained?

The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. This wage rate is usually obtained by contacting the State Workforce Agency (SWA) having jurisdiction over the geographic area of intended employment or from other legitimate sources of information, such as the Online Wage Library. The most common wage survey that is used is the Occupational Employment Statistics (OES) Survey.

To obtain the Prevailing Wage level, make a request to the local SWA. Prevailing Wage requests include the job title, job description, area of intended employment, and the requirements for the job (education level, experience requirement, and any other special requirements). SWA responds with the wage and indicates the wage survey used to determine the wage. It also provides the wage level.

What happens if the SWA determines a wage higher than what the employer is willing to pay?
If the SWA issues a wage higher than what the employer is willing to pay, it is possible to challenge the SWA. The employer may file supplemental information, a new Prevailing Wage Determination, or appeal under section 656.41. Certifying Officers from one of the two new processing centers will review these. Streamlined operations help ensure uniform decision-making

When is the Employer required to pay the prevailing wage as determined by the SWA?

Even if the beneficiary is currently working for the employer, the employer does not have to pay the prevailing wage until the beneficiary receives his or her green card.  Be advised that if the employer is also sponsoring the beneficiary for an H-1B, the employer must pay the prevailing wage as certified by the DOL in the Labor Condition Application.

How long are Prevailing Wage Determinations valid?

Each state sets its own validity period. However, by regulation the prevailing wage must be valid for at least 90 days but not longer than 1 year. Labor Certification Applications must be filed while the prevailing wage determination is valid.

What is a Job Order?

A Job Order is an advertisement for a job placed with the SWA. For purposes of PERM, the Job Order must run for a minimum of 30 days and the Labor Certification may not be filed until at least 60 days after the Job Order was originally posted. Each state has its own Job Order format and posting requirement.

What are the internal job posting requirements?

The employer must post a Notice of Job Opportunity at the worksite in a conspicuous location for a minimum of 10 consecutive business days. The posting must include the DOL contact information in case someone has information regarding the application, the title of the position with job description, and the requirements for the job. It must also include the salary offered. The posting must not appear for more than 180 days or end less than 30 days prior to filing labor certification.

If in-house media is typically used for recruitment, the notice of the job opportunity must appear in the in-house media.

If the position is governed by a Collective Bargaining Agreement, the Representative must be given the Notice of Job Opportunity within the 180 and 30-day time frame.

What are the mandatory recruitment requirements?

Under PERM, employers wishing to file labor certifications must place advertisements in the newspaper on 2 Sundays. The newspaper must be the newspaper with the highest circulation in the area. If the newspaper with the highest circulation does not have a Sunday edition, then the day of the week that has the highest circulation may be used (e.g., if there is no Sunday paper, but the greatest number of papers are sold on Friday, the ad may appear in the Friday edition.)

What information must be in the newspaper advertisements?

The newspaper advertisements must have 4 pieces of information:

  • The title of the position with enough information to describe the job
  • The name of the employer
  • The location of the employer
  • Where to send resumes

When are alternate forms of recruitment required?

Alternate forms of recruitment are required when the job is a professional occupation, typically one that requires a bachelor's degree. If you have questions as to whether your job counts as a professional occupation, please contact our office for more information.

What are the alternate forms of recruitment requirements?

If the job requires alternate recruitment, the employer must use 3 of the following forms of recruitment:

  • Employer's website
  • Job Fair
  • On campus recruitment
  • Campus Placement office
  • Employee referral program
  • Local and ethnic newspapers as related to the job being offered
  • Radio and TV ads
  • Trade and professional organization
  • Job website (e.g., Careerbuilder, Monster, etc.)
  • Professional Recruiters

There is no specific requirement as to how long each of the above ads must run; however, the employer must show that they made a good faith effort to find qualified U.S. workers.

What is the timing for filing a Labor Certification under PERM?

A Labor Certification must be filed within 180 days of the first form of recruitment. It cannot be filed fewer than 30 days from the completion of the last form of recruitment. However, one of the alternate forms of recruitment may occur during the 30-day wait period prior to filing.

What happens once the advertisements are placed?

Once the advertisements are placed, if the employer receives resumes, the employer is obligated to contact each applicant who appears to qualify for the position. Applicants may only be disqualified for lawful reason (i.e., he or she does not have the required level of education or the required years of experience.)

What if the employer has had layoffs?

If the employer has had any layoffs in the beneficiary's occupation or a related occupation within six months before filing, the employer must document that it has contacted and considered all laid-off employees.

What is a Recruitment Report?

Once the recruitment is complete and the applicants have been interviewed and disqualified, the employer must prepare a recruitment report. The recruitment report details what the job is, the recruitment steps taken, the number of applicants, the reasons why the applicants were not offered the job, and how the beneficiary of the labor certification meets the requirements for the job.

What is Business Necessity?

Business Necessity is a means to justify requirements that are not normal to the occupation and/or exceed the SVP. While the job opportunity's requirements, as a rule, must be normally required for the occupation and not exceed the SVP level assigned by the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceeds the SVP.

Business necessity may be shown by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to the performance of the job in a reasonable manner.

How is the Labor Certification filed under PERM?

Employer's have two choices of filing under PERM. The first and most efficient way is electronically. The employer sets up an account with the PERM online system that will allow the company to file and track cases. The system also allows employers to create a sub account for attorneys so that an attorney may file an application on the employer's behalf. By filing online employer, beneficiary, and attorney signatures are not required at the beginning.

The second choice is filing by mail. The disadvantage to filing by mail is that there is no way to track the application once it is filed. Also, the employer relies on the Department of Labor to correctly enter the information from the application into the online system. The employer, beneficiary, and attorney must sign the application prior to filing.

What happens after the application is filed?

If the Labor Certification application has been filed electronically, the Department of Labor will contact the employer to verify the employer's intention to file a labor certification on behalf of the beneficiary. Once the employer confirms the application, processing continues.

Who adjudicates the Labor Certification?

Certifying Officers (CO) from the Department of Labor adjudicate cases and decide whether to Certify, Deny, or Audit cases. Employers will be notified in writing of the determination. If approved, the CO will send the certified application to the employer or attorney of record. If denied, the Final Determination will provide reasons and advise a review of procedures and deadlines.

What is an Audit?

Either randomly or for cause, the CO of the PERM-processing center may request an audit of any permanent labor certification. If selected, the employer must be prepared to present thorough documentation of the recruitment efforts used. The employer may also be required to submit additional information, depending on the reason behind the audit. The response time for the audit is 30 days. If the employer does not respond, action will be decisive and final.

The CO may require supervised recruitment on future applications, either because an employer failed to respond to an audit in the past or as part of a mandated supervised recruitment. For supervised recruitment, responses to an approved ad would go to the CO first. The CO may also require additional recruitment efforts.

No guidance has been issued as to when an audit may occur; however, some triggering factors may include the following:

  • Employers with 10 or fewer employees
  • Employers that are corporations, partnerships, or sole-proprietors with any family relationship between its employees and the sponsored foreign national
  • An employer that accepts an alternate combination of education and experience
  • An employer that accepts experience in an alternate occupation
  • Job requirements that exceed those "normal" to the occupation as determined by the DOL
  • Job that includes a combination of occupations

If the labor certification is denied, may the application be re-filed?

Yes. If a labor certification is denied the application may be re-filed without any waiting period. The only time restriction is based on whether the recruitment is still valid for the position.

What if the Labor Certification was incorrectly denied?

Requests for review of denials or revocations are filed with the Board of Alien Labor Certification Appeals (BALCA).

May a labor certification be withdrawn?

Yes. A labor certification may be withdrawn before an audit notice has been issued.

What happens once the Labor Certification has been certified?

Once a Labor Certification has been certified, the employer must file a Form I-140, Immigrant Petition, to the USCIS. This immigrant petition demonstrates that the employer has the ability to pay the proffered wage to the beneficiary and that the beneficiary meets the qualifications as defined in the labor certification.

If the Labor Certification was filed electronically, the employer, beneficiary, and attorney of record must sign the certified labor certification in order for it to be valid. The signed, original, certified labor certification is filed with the I-140, Immigrant Petition.

What is an Audit File and how long must the employer keep it?

The Audit File is the file that the employer keeps to document the recruitment process used in filing the labor certification. The employer is required to keep this file for five years. At any time the Department of Labor may call upon the employer to produce records of its recruitment process.

What documents should be kept in the Audit File?

Documents that should be kept in the Audit File include:

  • Tear sheets for the newspaper ads
  • Tear sheets for all other ads or confirmations of ad placements
  • Confirmation that the Job Order was posted and the dates it was posted
  • Signed Notice of Job Opportunity
  • Prevailing Wage Determination
  • Recruitment Report detailing why applicants were not hired
  • Resumes received
  • Beneficiary's credentials and letters of experience

May an Employer sponsor a beneficiary who is not currently working for it?

Yes. It does not matter if the beneficiary is currently working for the employer because the labor certification application is for a future offer of employment (i.e., an offer of employment for when the beneficiary receives his or her green card.) The same rule applies for beneficiaries who are not currently in the United States. An employer may apply for someone still living abroad.

Does an approved Labor Certification give status?

No. A labor certification is merely a certification from the Department of Labor that there are no qualified US workers able, willing, or available to perform a particular job, in a particular location. Likewise, the I-140, Immigrant Petition, also does not confer status. The petition classifies the Employment Based Category in which an immigrant will receive his or her green card.

May a Labor Certification filed traditionally or through Reduction in Recruitment be re-filed under PERM?

If a job order has not been placed for a pending, non-PERM labor certification application, the application may be re-filed under PERM without loss of the priority date under certain conditions. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements, and it must contain an identical job opportunity.

In order to re-file under PERM and preserve a priority date from an earlier case that has not been assigned a job order, the original labor certification application must also be withdrawn. Please note that filing an application under PERM and stating the employer's desire to use the original filing date will be considered a withdrawal of the original application. This deemed withdrawal occurs even if the request to use the original filing date is denied.

If a Traditional or RIR labor certification is withdrawn prior to filing a PERM application, preservation of the existing priority date requires that the PERM application be submitted within 210 days of the withdrawal of the original application. The employer should be prepared to send a copy of the original application, including amendments, to the CO if requested.

A job opportunity is identical if the employer, foreign national, job title, job location, job requirements, and job description are exactly the same as those in the original application. The original application includes all accepted amendments up to the time that the application was withdrawn.

What is Schedule A?

Schedule A is a list of occupations, for which the Department has determined there are not sufficient U.S. workers who are able, willing, qualified, and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. These occupations include physical therapists, nurses, and individuals with extraordinary ability in the arts and sciences.

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