Labor Certification Under PERM
Written by Henry J. Chang
Section 212(a)(5)(A) of the Immigration and Nationality Act ("INA") prohibits the entry of certain immigrants who are entering the United States to perform labor, unless the Secretary of Labor has certified that there is a shortage of U.S. workers to perform such labor and that the employment of the alien will not adversely affect wages and working conditions of such workers. An intending immigrant who requires a permanent labor certification, but does not have one, will be inadmissible under INA §212(a)(5)(A).
Permanent labor certification requirements are applicable only to the second and third employment-based preference categories. However, an employment-based second preference beneficiary who has obtained a national interest waiver will be exempted from the requirement of a permanent labor certification). The labor certification requirement also does not apply to the first employment-based preference, family-based immediate relative and preference categories, immigrant investors, special immigrants, or refugees/asylees.
Before the U.S. employer can file a second or third employment-based immigration petition with United States Citizenship and Immigration Services ("USCIS"), it must normally obtain an approved permanent labor certification from the DOL's Employment and Training Administration ("ETA"). DOL must certify to USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the 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. Since March 28, 2005, permanent labor certification cases have been filed under the PERM program.
In categories where a permanent labor certification is required, the priority date for the consideration of an immigrant visa will be the date that the application for permanent labor certification is filed. This is to ensure that the alien is not penalized for the time that is required to obtain a permanent labor certification.
The basic requirements for seeking permanent labor certification under PERM are substantially the same as they were under the previous regulations. These requirements are as follows:
Form of Application
The U.S. employer requests a permanent labor certification by completing an Application for Permanent Employment Certification ("ETA Form 9089"). This application describes the job duties, educational requirements, training, experience, and other special capabilities that the alien must possess to do the work, and a statement of the prospective alien's qualifications.
Applications that are submitted by mail must contain the original signature of the employer, alien, and preparer (if applicable) when they are received by the processing center. Applications filed electronically must, upon receipt of the permanent labor certification issued by ETA, be signed immediately by the employer, alien, and preparer (if applicable) in order to be valid.
Prevailing Wage Requirements
Prior to filing ETA Form 9089, the U.S. employer must first request a prevailing wage determination from the State Workforce Agency ("SWA") having jurisdiction over the proposed area of intended employment. The U.S. employer is then required to include the following prevailing wage information on the ETA Form 9089:
- The employer must be prepared to hire the foreign worker on a full-time and permanent basis.
- There must be a bona fide job opening available to U.S. workers.
- Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity.
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
The proposed wage for the alien must at least be equal to this prevailing wage.
Pre-Filing Recruitment Requirements
All U.S. 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 precertified 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 which a bachelor's or higher degree is a customary requirement. The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the Certifying Officer prior to rendering a final determination.
Mandatory Recruitment Steps
The requirement of a job order and the requirement of two print advertisements, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process (described below). The mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. Each of these requirements is described in greater detail below.
The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application will serve as documentation of this step.
Advertisements in Newspaper or Professional Journals
The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate
to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. If the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. The advertisements must satisfy the specific requirements contained in the regulations, which are described below.
If the job involved in the application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Documentation of this step can be satisfied by providing a copy of the page in which the advertisement appeared.
Additional Recruitment Steps
The employer must also select three additional recruitment steps from the alternatives listed below:
- 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.
Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application.
If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the
application. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.
The U.S. employer must place a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.
The U.S. employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. If the job opportunity is located in a rural area of intended employment that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment. Documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper. The advertisements must satisfy the requirements contained in the regulations, which are described below.
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.
Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:
- Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
- Employer's website. The use of the employer's website as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
- Job search website other than the employer's. The use of a job search Web site other than the employer's can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements mentioned above can serve as documentation of the use of a website other than the employer's.
- On-campus recruiting. The employer's on-campus recruiting can be documented by providing copies of the notification issued or posted by the college's or university's placement office naming the employer and the date it conducted interviews for employment in the occupation.
- Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
- Private employment firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the
- Employee referral program with incentives. The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
- Campus placement offices. The use of a campus placement office can be documented by providing a copy of the employer's notice of the job opportunity provided to the campus placement office.
- Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer's advertisement.
- Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer's text of the employer's advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
The U.S. employer must prepare a recruitment report signed by the employer or the employer's representative describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the reasons the workers were rejected.
A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of the U.S. workers.
The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.
Job Duties, Restrictive Requirements, and Business Necessity
General Rule for Job Duties
The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must
not exceed the Specific Vocational Preparation ("SVP") level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.
Foreign Language Requirements
A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:
- Name the employer;
- Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;
- Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
- Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
- Not contain a wage rate lower than the prevailing wage rate;
- Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
- Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.
If the job opportunity involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity. Combination occupations can be documented by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity.
Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought and if the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.
Actual Minimum Requirements
DOL will evaluate the employer's actual minimum requirements in accordance with the following rules:
- The nature of the occupation, e.g., translator; or
- The need to communicate with a large majority of the employer's
customers, contractors, or employees who can not communicate effectively
in English, as documented by:
- The employer furnishing the number and proportion of its
clients, contractors, or employees who can not communicate in English,
and/or a detailed plan to market products or services in a foreign
- A detailed explanation of why the duties of the position for
which certification is sought requires frequent contact and
communication with customers, employees or contractors who can not
communicate in English and why it is reasonable to believe the allegedly
foreign-language-speaking customers, employees, and contractors can not
communicate in English.
For purposes of the above provision, the term "employer" means an entity with the same Federal Employer Identification Number. A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants.
Conditions of Employment
Working conditions must be normal to the occupation in the area and industry.
Live-in requirements are acceptable for household domestic service workers only if the employer can demonstrate the requirement is essential to perform, in a reasonable manner, the job duties as described by the employer and there are not cost-effective alternatives to a live-in household requirement. Mere employer assertions do not constitute acceptable documentation. For example, a live-in requirement could be supported by documenting two working parents and young children in the household, and/or the existence of erratic work schedules requiring frequent travel and a need to entertain business associates and clients on short notice. Depending upon the situation, acceptable documentation could consist of travel vouchers, written estimates of costs of alternatives such as babysitters, or a detailed listing of the
frequency and length of absences of the employer from the home.
If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which
certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.
For the purposes of the above provision, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.
Alien Influence and Control over Job Opportunity
If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, (i.e. the job is available to all U.S. workers), and must provide to the Certifying Officer, the following supporting documentation:
- The job requirements, as described, must represent the employer's actual minimum requirements for the job opportunity.
- The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.
- If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless:
- The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or
- The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
Audits/Requests for Information
Supporting documentation need not be filed with the application, 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.
Retention of Records
The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. 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.
Refiling of a Prior Labor Certification Application Under PERM
If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" by the Certifying Officer and returned to the employer or agent who submitted the application. The employer or agent then files the beneficiary's employment-based petition and includes the certified ETA Form 9089 with the petition.
Appeal of Denials
- A copy of the articles of incorporation, partnership agreement, business license or similar documents that establish the business entity;
- A list of all corporate/company officers and shareholders/partners of the corporation/firm/business, their titles and positions in the business' structure, and a description of the relationships to each other and to the alien beneficiary;
- The financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the alien beneficiary;
- The name of the business' official with primary responsibility for interviewing and hiring applicants for positions within the organization and the name(s) of the business' official(s) having control or influence over hiring decisions involving the position for which labor certification is sought; and
- If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.
A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals ("BALCA"). BALCA may affirm the labor certification denial, direct the CO to approve the labor certification or remand the case to the CO for reconsideration in a manner consistent with its instructions.
Special Handling of Certain Occupations
Certain occupations are subject to what is known as "special handling." Some of these special handling categories are briefly described below:
College and University Teachers
Special handling for college and university teachers relieves the employer several obligations, including the need for further recruitment, the need to state salary in the recruitment advertising, and the need to submit applicants' names and resumes to the SWA. Most importantly, special handling allows employers to hire the most qualified individual rather than a minimally qualified U.S. worker.
The employer must demonstrate that it conducted a previous competitive recruitment selection process (involving at least one advertisement in a national professional journal), which found the alien to be more qualified than any of the U.S. workers who applied for the job. However, for special handling to apply, a labor certification application for a college or university teacher must be filed within eighteen months after the alien was selected for the job.
Aliens of Exceptional Ability in the Performing Arts
Special handling allows proposed employers of aliens of exceptional ability in the performing arts to hire the most qualified individual rather than a minimally qualified U.S. worker. However, the employer must demonstrate that the alien's work experience during the past twelve months required exceptional ability and that the job offered will also require exceptional ability. The employer must also document its prior recruitment efforts. This includes evidence that at least one advertisement was placed in a national publication appropriate to the occupation and that any unions customarily used as recruitment sources were unable to refer equally qualified workers.
Performing arts of exceptional ability are not included in Schedule A Group II precertification, since performing artists are specifically excluded from Schedule A Group II. Performing artists of exceptional ability must qualify for labor certification under this special handling procedure. Performing artists who do not have exceptional ability are subject to normal labor certification requirements.
Applications for Alien sheepherders must show that the alien has been employed legally as a nonimmigrant sheepherder for at least thirty-three of the last thirty-six months. Such applications are filed directly with USCIS (instead of with the SWA or DOL) and must be accompanied by signed letters from U.S. employers certifying such employment. The determination of USCIS is conclusive and final.
Schedule A Precertifications
This group of occupations can benefit from blanket precertifications. As U.S. workers are acknowledged to be in short supply for these occupations, no individual labor certification is necessary. Schedule A includes the following occupations:
- Physical therapists (Group I);
- Professional nurses (Group I); and
- Aliens of exceptional ability in the sciences or arts, except for aliens in the performing arts (Group II).
Schedule A precertifications are dealt with in detail here.