PERM Labor Certification
For most foreign workers being sponsored for permanent residency by their employers, obtaining a labor certification from the U.S. Department of Labor (“DOL”) is the first step in the green card application process.* Labor certification requires that the employer demonstrate to the DOL that there is an unavailability of willing, able, and qualified U.S. workers to fill the position for which the foreign worker is being sponsored. The employer must do this by conducting a recruitment campaign in accordance with the strict requirements laid out in the DOL regulations, appeal decisions and other administrative guidance. If the employer is successful in demonstrating the unavailability of U.S. workers, an application for labor certification may be filed with the DOL on behalf of the foreign worker, and the Certifying Officer should ‘certify’ the application. The certified application can then be used to file an I-140 Immigrant Petition with the United States Citizenship and Immigration Services (“USCIS”) on the foreign worker’s behalf.
“Pre-filing” Recruitment of U.S. Workers
The Immigration and Nationality Act (INA) defines a “specialty occupation” as:
Since March 28, 2005, all labor certification applications must be filed through an online attestation-based system called the Permanent Electronic Review Management System (“PERM”). Prior to submitting this online application, the employer is required to conduct a recruitment campaign to attract potentially qualified U.S. workers. The campaign must take place over the course of at least two months, and must follow strict guidelines laid out in the DOL regulations. These guidelines proscribe how, where and when the recruitment must be carried out. For professional-level positions, the DOL guidelines require the employer to advertise in two separate Sunday editions of a major newspaper for the area of intended employment, or alternatively, advertise in one such newspaper and in a professional journal. The employer must also select three additional selective recruitment steps from a list of ten options. These options include: employer website, employee referral programs, internet advertising on a job search site, use of headhunters, job fairs, on-campus recruitment, local and ethnic newspapers, trade associations, radio advertisements, and television advertisements. The recruitment must be started no sooner than six months prior to the filing, and must be completed no later than 30 days prior to the filing (with the exception of one of the selective recruitment steps, which can be conducted within the final 30 days).
Because the DOL’s strict recruitment guidelines do not align with the recruitment practices that employers normally use to attract skilled workers, sponsoring foreign workers through the PERM process usually requires the guidance of the employer’s immigration counsel to develop carefully worded ads that meet all DOL requirements.
Where the beneficiary does not have a bachelor’s degree, but has substantial related work experience, the petitioner may demonstrate that the beneficiary has the equivalent to a bachelor’s degree by showing that the individual has achieved “a level of knowledge, competence, and practice … that has been determined to be equal to that of an individual who has a bachelor’s or higher in the field.” This may be shown through one or more of the following:
Notice of filing
In addition to the recruitment efforts outlined above, the employer must also provide notice of the filing of the PERM application to other workers at the worksite and post the job opportunity for thirty days with the state workforce agency in the state in which the job is being offered.
The job requirements that the employer uses to recruit U.S. workers, which are also the requirements listed on the PERM application, must be the actual minimum requirements for the position. The requirements must not be tailored to the foreign worker’s background. If the requirements are not considered by the DOL to be "normal" for the occupation, the employer must be prepared to document a business necessity for these requirements. The DOL may also require that the employer show why it was infeasible to train U.S. workers to meet one or more of the specific job requirements. Both of these situations will cause considerable delays in the overall PERM process.
In most cases, the foreign worker will be required to document that he or she met the job requirements prior to joining the sponsoring employer.
Prevailing Wage Determination
The position for which a PERM application is being filed must be offered at or above the “prevailing wage” for the area of intended employment. To demonstrate compliance with this requirement, the employer or the employer’s immigration counsel must obtain a prevailing wage determination from the DOL prior to filing the PERM application. Due to the DOL’s rigid system for classifying occupations and assigning prevailing wages, obtaining an accurate prevailing wage in some cases may require postponement of the PERM filing.
Recruitment Report and Filing the PERM Application
If the employer has been unable to find a minimally qualified U.S. worker for the sponsored position at the conclusion of the recruitment campaign, the employer must document the recruitment results by completing a recruitment report. The employer may then proceed to file the PERM application on the foreign worker’s behalf. As noted above, the application itself is simply an attestation. As such, it does not require submission of the recruitment report or supporting documentation at the time of filing. The employer is required to keep this documentation in the event of an audit by the DOL.
The PERM application is initially "reviewed" by a computer which may identify issues requiring further inquiry. Through this automated review process, a significant number of PERM applications are referred to a human adjudicator who may issue an audit letter requiring the employer to provide all of the documentation to support the attestations made on the application. While some applications are randomly selected for auditing, most audits are triggered by "red flags" that the DOL’s computer has been programmed to recognize. For example, a PERM application filed for a doctor that does not indicate the requirement of a medical degree, will likely be audited. Audited applications generally take significantly longer (one or more years) than unaudited applications.
*This article provides a general overview of the labor certification process, which is a highly complex process subject to frequently changing rules and adjudicatory practices. Many of these rules and practices are not well-publicized by the DOL and also not covered in this article. The article should not be used as a guide or relied upon in anyway in the preparation or filing of a PERM application, which should only be done with the direct guidance of a highly experienced immigration counsel.