Labor Certification AKA PERM for Professional and Non-Professional Jobs

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A labor certification (PERM) is a pre-requisite to being eligible to obtain a green card after your entrance into the United States as a business visa holder. Read the information below to get a general idea of what is involved in the Labor Certification process.
My best advice to you is that because this type of procedure is incredibly complex, your best bet is to consult an immigration lawyer in the USA to assist you and give you legal representation throughout this process.

Pre-Requisite for Labor Certification (PERM)

Prevailing Wages

Generally, the changes and clarifications related to the employer’s obligation to pay prevailing wage and the manner for challenging a prevailing wage determination apply equally to H-1Bs and to Labor Certification.

Payment of 100% of the Prevailing Wage

The final rule clarifies that the changes to prevailing wages in the Consolidated Appropriations Act of 2005, related to the filing of H-1B applications applies equally to the labor certification program. The prevailing wage required to be paid is 100% of the prevailing wage; the 5% variance is no longer allowed in either the H-1B visa application or the labor certification program.

Validity of Prevailing Wage Determinations

Information about filing a Prevailing Wage Determination

File a New PWD

Filing a new PWD may be done at any time. The filing of a second alternative survey will be considered as a new request and a new review period will be initiated.

Prefiling Recruitment Steps for a Labor Certification

Posted Notice

The employer must post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage. The primary purpose of the posted notice is to give employees an opportunity to comment on the application and that the posted notice is not another way to recruit US workers.

Job Order

The employer must place a job order with the SWA for a period of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.

Advertisements

The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ads may be placed on consecutive Sundays. If the job is located in a rural area with no Sunday edition, the employer may use the edition with the widest circulation. However, the use of a suburban newspaper on a day other than Sunday is not allowed.

NOTE: Placement of the ad under an inappropriate heading or keyword would be considered a failure to make good-faith efforts to recruit U.S. workers. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the vacancy specific enough to apprise US workers of the job opportunity.

The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage.

Documentation of the ad can be supplied by a copy of the newspaper page or proof of publication supplied by the newspaper. Form ETA 9089 requires the employer to list the name of the newspaper and date of publication for each ad. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.

Three Additional Recruitment Steps for Eligibility of Labor Certification for Professional Jobs

The PERM regulation retains the requirement in the proposed regulations that applications for professional jobs must have additional recruitment. The list of permitted additional recruitment steps in the final PERM regulation include: 1) job fairs; (2) employer’s web site; (3) job search web site other than employer’s; (4) on-campus recruiting; (5) trade or professional organizations; or (6) private employment firms. (7) an employee referral program, if it includes identifiable incentives; (8) a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) radio and television advertisements.

Further, a web page generated in conjunction with a print ad now counts as a website other than the employer’s. The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month. Only one of the additional recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the employers to specify the dates of each additional recruitment step.

The final rule specifies how each type of additional recruitment activity can be documented. Alternative recruitment steps only require employers to advertise for the occupation involved in the application rather than for the job opportunity as is required for the newspaper ads.

Distinguishing between Professional and Non-Professional Jobs

A professional job is a job for which the attainment of a bachelor's or higher degree is a usual education requirement. DOL published a list of professional occupations in Appendix A to the PERM rule. If the occupation is listed on Appendix A, the employer must follow the recruitment regimen for professional occupations. However, the employer may also use the additional recruitment steps for other occupations.

Labor Certification (PERM) Recruitment Report

Contents of Recruitment Report

The employer must prepare a recruitment report that describes the recruitment steps taken and the results. The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection. The CO may, after reviewing the employer’s recruitment report, request copies of the US workers’ resumes, sorted by the reasons for rejection.

The employer must sign the recruitment report. Also, it is important to know that in response to numerous comments from employers who receive a large volume of unsolicited resumes, the final rule does not require the employer to identify the individual U.S. workers who applied for the job opportunity.

Failure to Meet the Minimum Requirements

An applicant's failure to meet the employer's stated minimum requirements is a lawful reason for rejection. However, if a worker lacks a skill that may be acquired during a reasonable period of on-the-job training, the lack of that skill is not a lawful basis for rejecting an otherwise qualified worker. This final rule does not specify what constitutes a reasonable period because the training period may vary by occupation, industry, and job opportunity.

Retention of Documentation

Supporting documents must be retained for five years from date of filing.

How and Where to File—Basic Process

Using a new form, Application for Permanent Employment Certification (ETA 9089), employers can file either electronically or by mail to the appropriate ETA processing center. Faxing will not be allowed.

Electronic filing

Employers will go to the ETA website located at http://www.plc.doleta.gov. to complete and file the form. The site will allow frequent users to set up a file with basic, repeat information, much like the LCA system (employer name, address, etc.). Passwords or identifiers also might be assigned to individuals (not businesses) for fraud prevention purposes. No G-28 is required. The employer signs the form declaring the attorney to be the legal representative. Once the ETA is certified, the employer must sign the form upon receipt from ETA.

A copy must be maintained in the employer’s files; the original, signed ETA must accompany the I-140 when it is filed with CIS. A priority date will be assigned as of the date the electronic submission is accepted for filing. Incomplete applications will not be processed, but simply denied.

Filing by mail

Applications can be mailed directly to the appropriate centralized processing center. The addresses of the processing centers will be listed at http://www.workforcesecurity.doleta.gov/foreign/. Applications filed by mail must bear the original signature. A priority date will be assigned as of the date of receipt, provided the form is accepted for filing.

Supporting documentation

Prevailing Wage Determination as a Pre-Requisite to Filing Application for Labor Certification

Employers must file with the SWA and receive a prevailing wage determination prior to filing the ETA 9089. Employers will use the state-designated prevailing wage request form. Information from the prevailing wage determination will then be incorporated into the ETA 9089. The actual prevailing wage determination form should be retained as a supporting document, to be furnished to ETA in the event of an audit.

Filing Fees

As luck will have it…There is no filing fee, as was suggested in the proposed rule. Until Congress enacts legislation authorizing a fee, labor certification filing fees are not permitted.

Live-In Domestic Workers – Special Rules

The basic filing procedures will still apply to live-in domestic workers. However, the documentation requirements are weightier. Supporting documents should not be filed with the ETA, but should be retained in the employer’s files in the event of an audit upon request by the Certifying Officer.

For a labor certification (PERM) for a live-in domestic worker, the following three documents must be maintained:

Revocation of Approved Labor Certification (PERM)

It is extremely important to note that the CO, in consultation with the Chief, Division of Foreign Labor Certification, may revoke an approved labor certification (PERM) if he/she finds that the certification was not justified. However, the CO must send the Employer a Notice of Intent to Revoke containing a detailed statement of the grounds for revocation and the time period allowed for the Employer's rebuttal.

At that time, the Employer has 30 days within which to submit a response. If the Employer fails to submit a rebuttal, the Notice of Intent to Revoke becomes final. If the Employer files rebuttal evidence and the CO determines the certification should be revoked, the Employer may file an appeal under Sec. 656.26. The CO must inform the Employer within 30 days of receiving any rebuttal evidence whether or not the labor certification will be revoked. If the labor certification is revoked, the CO will send a copy of the notification regarding the revocation to the DHS and the DOS.

As you can see from the above information, the process for obtaining a labor certification; what is now called a PERM is incredibly complex and time consuming. Hence, I strongly recommend you contact an immigration lawyer who deals with such matters and procedures on a routine basis. With business immigration visas, one wrong move in the immigration procedure of applying for these visas or any visa in general can blow your chances of ultimately obtaining your green card and US citizenship.

Be informed dont let one wrong move ruin your chances of obtaining a green card or US citizenship!