Immigration

Srinivasa Reddy Kandi: PERM Labour Certification?

February, 15, 2025-04:51

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PERM Labour Certification?

A Permanent Labor Certification, granted by the Department of Labor (DOL), allows an employer to employ a foreign national for a permanent position in the United States. Before the employer can file an immigration petition (Form I-140) with USCIS, they must first secure an approved Labor Certification Request from the DOL's Employment and Training Administration (ETA). This procedure, known as PERM (Program Electronic Review Management), is an essential component for many employment-based green card applications, especially within the EB-2 and EB-3 preference categories.

The DOL issues a Labor Certification to indicate to USCIS that there are no qualified U.S. workers available for the position at the prevailing wage in the specified employment area. Additionally, it ensures that the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers in comparable roles.

To initiate a PERM Labor Certification, the following criteria must be satisfied:

Applications submitted on or after March 28, 2005, are required to adhere to the PERM process.
The employer is obligated to employ the foreign worker in a full-time capacity.
A job vacancy must be accessible to U.S. workers.
The job specifications must align with the standard requirements for the occupation in the U.S., without being customized to fit the qualifications of the worker. The employer must prove that the job opportunity is presented without overly restrictive criteria, unless such restrictions are warranted by business necessity.
The employer is required to offer at least the prevailing wage for the occupation in the designated employment area.

The PERM filing process consists of several stages:

Application: The employer must fill out an Application for Permanent Employment Certification (ETA Form 9089), detailing the job responsibilities, educational prerequisites, experience, and other qualifications necessary for the role, along with the qualifications of the prospective immigrant.
Signature requirement: The application must include the original signatures of the employer, the foreign worker, and the preparer (if applicable) when submitted via mail. For electronic submissions, signatures must be obtained immediately upon receipt of the labor certification from ETA.
Prevailing wage: Prior to submitting ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) that has jurisdiction over the intended employment area. The application must include the information provided by the SWA, such as prevailing wage, SOC/O*NET code, job title, skill level, wage source, determination date, and expiration date.
Pre-Filing Recruitment Steps: With certain exceptions, employers must confirm that recruitment efforts were made prior to filing the application. The recruitment process must adhere to standards based on the professional or nonprofessional requirements of the occupation.

Audits/requests for information: Supporting documentation is not submitted with ETA Form 9089 but must be provided if the application is audited or requested by the Certifying Officer.
Retention of records: The employer must retain all supporting documentation for five years from the filing date.

Re-filing: If a job order hasn't been placed under the regulations prior to March 28, 2005, an employer can withdraw the original ETA Form 750 application and submit an ETA Form 9089 within 210 days to comply with the new PERM regulation.
Online filing: Employers have the option to file electronically or by mail, with electronic filing being recommended for efficiency and accuracy. The Online Permanent System permits for employers to set up individual accounts, facilitating application management and communication.
Filing by mail: National Processing Centers in Atlanta and Chicago handle mail submissions. The relevant addresses and contact information can be found on the DOL website.
Approvals: If the National Processing Center approves the application, the ETA Form 9089 is stamped and returned to the employer.

Frequently Asked Questions regarding PERM Labor Certification:

What are the prerequisites for PERM?

The prerequisites for PERM include:

- A Prevailing Wage Determination from the State Workforce Agency (SWA)

- A job order that must be posted with the SWA for a duration of 30 days

- An internal notice regarding the job opportunity

- Required advertisements in a Sunday newspaper

- Additional advertisements for positions in professional fields

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

The Prevailing Wage refers to the average compensation provided to workers in similar roles within the specified occupation and geographic region. It can be acquired by reaching out to the SWA or by utilizing credible resources such as the Online Wage Library. The Occupational Employment Statistics (OES) Survey is the most frequently referenced wage survey.

What occurs if the SWA establishes a wage that exceeds what the employer is prepared to offer?

If the SWA sets a higher wage, the employer has the option to contest this determination. They can submit additional information, request a new Prevailing Wage Determination, or file an appeal under section 656.41. Certifying Officers will review these submissions to ensure consistent decision-making.

When is the employer obligated to pay the prevailing wage as established by the SWA?

The employer must pay the prevailing wage once the beneficiary obtains their green card. However, if the employer is sponsoring the beneficiary for an H-1B visa, they are required to pay the certified prevailing wage as indicated in the Labor Condition Application.

What is the duration of validity for Prevailing Wage Determinations?

Each state determines its own validity period, but the prevailing wage must remain valid for a minimum of 90 days and a maximum of 1 year. Labor Certification Applications must be submitted while the prevailing wage determination is still valid.

What constitutes a Job Order?

A Job Order is a job advertisement submitted to the SWA. It must be posted for at least 30 days, and a Labor Certification cannot be filed until at least 60 days have passed since the Job Order was initially posted. Each state has specific formats and requirements for Job Orders.

What are the requirements for internal job postings?

Employers are required to display a Notice of Job Opportunity at the workplace for at least 10 consecutive business days. This notice must contain the Department of Labor's contact information, the job title, a description of the position, the qualifications needed, and the salary being offered. If recruitment is conducted through internal media, the notice must also be published there. Additionally, Collective Bargaining Agreements may stipulate specific requirements.

What are the essential recruitment requirements?

According to the PERM process, employers must advertise in newspapers on two Sundays. The advertisement should be placed in the newspaper with the largest circulation in the area. If a Sunday edition is unavailable, the day with the highest circulation can be utilized instead.

What details should be included in the newspaper advertisements?

The newspaper advertisements must feature the job title, the employer's name and location, and instructions on where to send resumes. Adequate information about the job should be provided to ensure an accurate description.

When is it necessary to use alternative recruitment methods?

Alternative recruitment methods are mandated for professional roles that generally require a bachelor's degree. If there is any uncertainty regarding the classification of the job, it is advisable to seek guidance from an immigration office.

What are the alternative methods for fulfilling recruitment requirements?

If alternative recruitment is necessary, the employer must utilize three of the following options:

- Employer's website
- Job Fair
- On-campus recruitment
- Campus Placement office
- Employee referral program
- Local and ethnic newspapers
- Radio and TV advertisements
- Trade and professional organizations
- Job websites
- Professional recruiters

The specific duration for each advertisement is not defined; however, the employer is required to demonstrate a genuine effort to locate qualified U.S. workers.

What is the timeline for submitting a Labor Certification under PERM?

A Labor Certification must be submitted within 180 days following the initial recruitment method. It cannot be filed less than 30 days after the last recruitment method has been completed. One of the alternative recruitment methods may take place during the 30-day waiting period before filing.

What occurs after the advertisements are published?

After the advertisements are published, the employer is required to reach out to every qualified applicant who has submitted a resume. Applicants may only be disqualified for legitimate reasons, such as failing to meet the necessary education or experience requirements.

1. In the event that the employer experiences layoffs, it is essential to document that they have reached out to and considered all employees who were laid off within six months prior to the filing date, specifically in the beneficiary's role or a related field.

What constitutes a Recruitment Report?

Following the recruitment process, the employer is required to compile a Recruitment Report. This report must detail the job position, the steps taken during recruitment, the total number of applicants, the rationale for not selecting certain candidates, and how the beneficiary fulfills the job criteria.

What does Business Necessity mean?

Business Necessity refers to the justification for job requirements that are atypical for the position or exceed the Standard Vocational Preparation (SVP) level. It serves to illustrate that the job responsibilities and qualifications are reasonable, essential, and pertinent to the employer's operations.

How is the Labor Certification submitted under the PERM process?

Employers have the option to submit their applications electronically or via mail, with electronic submission being preferred for its efficiency and accuracy. The PERM online system enables employers to create accounts, monitor their cases, and collaborate with attorneys on applications. In contrast, mail submissions do not offer tracking features, placing the onus on the Department of Labor (DOL) to accurately process the information. Signatures from the employer, beneficiary, and attorney are mandatory for mail submissions.

What occurs after the application submission?

Upon electronic submission, the DOL will reach out to the employer to verify their intent to file a labor certification. Once this intent is confirmed, the processing of the application will proceed. Certifying Officers at the DOL will review the cases and decide whether to Certify, Deny, or Audit them. Employers will receive written notifications regarding the outcome of their application.

What is an Audit?

An Audit refers to a request for supplementary documentation or information, which may occur randomly or for specific reasons, initiated by the Certifying Officer. If an employer is selected for an audit, they are required to provide comprehensive documentation of their recruitment efforts. The timeframe for response is 30 days, and failure to comply may result in definitive and final actions. Audits can be triggered by a variety of factors.

Can a labor certification be re-filed if denied?

Yes, a labor certification that has been denied can be re-filed immediately, without any waiting period. The only condition is that the recruitment efforts must still be valid for the position in question.

What if the Labor Certification was incorrectly denied?
If a labor certification is believed to have been wrongly denied, a request for review can be submitted to the Board of Alien Labor Certification Appeals (BALCA).

Can a labor certification be withdrawn?
Yes, an employer has the option to withdraw a labor certification prior to the issuance of an audit notice.

What happens once the Labor Certification is certified?
Upon certification of a Labor Certification, the employer is required to submit Form I-140, Immigrant Petition, to the USCIS. This petition must demonstrate the employer's capability to pay the offered wage and the qualifications of the beneficiary as outlined in the labor certification. The original, signed, certified labor certification must accompany the I-140 submission.

What is an Audit File, and how long must it be kept by the employer?
The Audit File is maintained by the employer to document the recruitment process associated with the labor certification application. It must be preserved for a period of five years, as the Department of Labor (DOL) may request access to these records at any time.

What documents should be kept in the Audit File?
The Audit File should contain various documents, including tear sheets of newspaper advertisements, confirmations of ad placements, details of job order postings, signed Notices of Job Opportunity, Prevailing Wage Determination, Recruitment Reports, received resumes, the beneficiary's credentials, and letters of experience.

An employer can indeed sponsor a beneficiary who is not currently employed by them. The labor certification application pertains to a prospective job offer, which will be extended to the beneficiary upon their receipt of a green card. This provision also applies to beneficiaries residing outside the United States, allowing employers to sponsor individuals living abroad.

An approved labor certification does not provide immigration status. It serves merely as a certification from the Department of Labor indicating that there are no qualified U.S. workers available for a specific position in a designated area. Likewise, the approval of an I-140 immigrant petition does not grant immigration status; it categorizes the beneficiary under the relevant employment-based classification for green card purposes.

If a job order has not been initiated for a pending labor certification application filed through traditional or Reduction in Recruitment (RIR) methods, it may be re-filed under the PERM process without forfeiting the priority date, provided certain conditions are met. To maintain the priority date during the re-filing under PERM, the application must comply with all PERM regulations and involve the same job opportunity.

To successfully re-file under PERM while preserving the priority date from a previous application that lacks a job order, the original labor certification application must be withdrawn. It is crucial to understand that if a PERM application is submitted with a request to retain the original filing date, it will be treated as a withdrawal of the initial application, regardless of whether the request is approved.
If a Traditional or RIR labor certification is withdrawn prior to the submission of a PERM application, maintaining the priority date necessitates that the PERM application be filed within 210 days following the withdrawal of the initial application. The employer must be ready to present a copy of the original application, along with any amendments, to the Certifying Officer (CO) upon request.

A job opportunity is regarded as identical if the employer, foreign national, job title, job location, job requirements, and job description are precisely the same as those in the original application. The original application encompasses all accepted amendments made before the withdrawal.

What is Schedule A?
Schedule A is a compilation of occupations identified by the Department of Labor as having a shortage of qualified U.S. workers who are able, willing, qualified, and available to fill these roles. The employment of foreign nationals in these positions is considered not to negatively impact the wages and working conditions of similarly employed U.S. workers. Occupations listed in Schedule A include physical therapists, nurses, and individuals with extraordinary abilities in the arts and sciences.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.