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Labor Certification and PERM Filing

Introduction

A foreign person offered permanent employment in the U.S. must establish a basis of eligibility for an employment based preference petition, either through

  1. Labor certification (employment based second and third preference)
  2. Exemption from labor certification (employment based first, fourth and fifth preference) or
  3. Under a Schedule A category

Labor Certification

A foreign person offered permanent employment in the U.S. who does not qualify for an exemption from labor certification must obtain Alien Employment Certification, commonly called labor certification, from the U.S. Department of Labor (DOL). The DOL must be satisfied that no qualified U.S. workers are available to fill the permanent job offered to that person and that the working conditions and wages for the position will not adversely affect the U.S. labor market. Once approved, the labor certification is the basis for filing an employment based second or third preference petition with USCIS.

Standards DOL (Department of Labor) Takes to Exclude Foreign Workers

When issuing these certifications, the DOL applies two basic standards for excluding foreign persons

  1. If U.S. workers are available for the position, able, willing, and qualified; and/or
  2. If employing a foreign person would adversely affect the wages or working conditions of similarly employed U.S. workers

“Lawful U.S. workers“ covers U.S. citizens, permanent residents, asylees, and refugees.

Requirements to Get Labor Certification

To obtain labor certification, an employer must show that it has followed a specific recruitment program that tests the local labor market for qualified, available U.S. workers in the geographic area where the job will be filled. The employer must prove to the DOL that:

  1. The position offered to the foreign person is available and otherwise open to persons in the United States
  2. No unreasonable or unnecessary conditions are placed on the position and
  3. The wage offered meets or exceeds the prevailing wage in the community.

Reduction in Recruitment

In some cases, an employer may avoid the labor certification process by proving to the DOL that, for at least six months, it tried to fill the position through normal and customary efforts and failed to find qualified workers.

What is the Effect of Reduction in Recruitment during PERM process?

Measures to Protect U.S Workers

The DOL protects U.S. workers with several measures: (1) no job tailoring; (2) no unreasonable conditions; (3) the prevailing wage requirement; (4) no hiring a foreign person just because he or she is more qualified; (5) extra documentation after recent layoffs.

DOL Measures to Protect U.S. Workers

What is PERM (Program Electronic Review Management)?

In 2004, the DOL issued final regulations establishing a new labor certification procedure, termed “Program Electronic Review Management“ (PERM). PERM took effect on March 28, 2005, and was intended to speed up determinations. PERM also introduced further measures to protect U.S. workers.

PERM Process

The PERM process requires that all recruitment occur before the application is filed and within 6 months of filing.

What are the Initial Steps of PERM Filing?

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After receiving the employer's labor certification application, the Employment Service verifies that the job was offered at the prevailing wage and posts the opening for thirty days on its recruitment system--the State Workforce Agency (SWA) for the area of intended employment. The employer must also advertise the position in a newspaper or trade journal.

Description and Period Requirements of PERM Filing Advertisement

DOL Initial Processing and Audit

DOL software reviews each application on submission and applies set rules to the information in key fields. If that information violates the rules, the system denies the application. If the application passes initial screening, the DOL computer system reviews it against selection criteria that flag problematic cases for audit. The DOL has stated that it built identifiers into the system to select cases for audit under program requirements, and the system also selects some cases at random.

Common Examples of System-programmed Denials

Rule violations that trigger system-programmed denials, or that may lead to denial during the final review stage, commonly include the following:

  1. the SWA's prevailing wage determination has expired;
  2. the job order with the SWA did not run for thirty days;
  3. the application is submitted less than thirty days after the job order, job posting, or last recruitment step is completed; or
  4. the Form 9089 lists recruitment that took place outside the 180-/30-day recruitment period.

Sponsorship Check

The initial review also includes a sponsorship check: DOL personnel contact the employer by email or phone to confirm that a job is being offered to the foreign worker.

Approval of the Application

If an application is not selected for audit and the sponsorship check is complete, it is sent to an analyst for final review. The analyst checks that the application contains no errors or inconsistencies and raises no issues warranting an audit. Absent rule violations and issues warranting an audit letter, the DOL analyst certifies the application and returns it to the employer.

Four Results of DOL Initial Processing-Possibility of Audit

  1. non-audited applications (applications that have not been selected for audit and await final review by a DOL analyst). If the recruitment efforts leave the employer unable to locate a U.S. worker who is able, willing, qualified, and available to fill the position, the DOL certifying officer may issue the labor certification. DOL estimates that an employer whose application is not selected for audit will be approved within 45-60 days;
  2. audited applications (those for which an audit letter has been issued);
  3. denied applications on appeal (including cases for which a motion to reconsider and/or a motion to review has been filed);
  4. “government error“ motions to reconsider (motions to reconsider filed in cases denied as a result of government error). If a case exceeds the normal processing time, the employer or attorney may submit an inquiry to the Atlanta NPC.

Who May be Selected to be Audited in the PERM Labor Certification?

What Should an Employer do When Selected for Audit after filing PERM?

When a case is selected for audit, the employer must submit supporting documentation showing compliance with every labor certification requirement, including any additional “reasonable“ requirements imposed by the DOL certifying officer. The DOL has issued more audit notices in recent years, and increased audit activity is expected to continue. The selected employer faces substantial documentation demands.

What are the Key Elements of the Employer's Audit File in a PERM filing?

Results after Audit - Approval, Denial or Supervised Recruitment

If the DOL finds the employer's audit response complete and consistent with Form 9089, it certifies the application. If the DOL deems the documentation deficient, it may deny certification. An audit ends in one of three results: approval, denial, or supervised recruitment.

What Happens if the PERM Application is Denied or Ordered Supervised Recruitment after Audit?

Effect of Labor Certification

Once the Labor Department certifies the case, the employer may file an I-140 petition with USCIS. The labor certification is not an authorization of any kind; it only establishes that too few available, qualified, and willing U.S. workers exist to fill the position and that the noncitizen's employment will not adversely affect the wages and working conditions of similarly situated U.S. workers. Once issued, it remains valid indefinitely as long as the job remains available.

Can Labor Certification be Amended after Approval?

DOL policy prohibits amending an approved labor certification. Once an application is submitted electronically or mailed, it is final, and no changes are permitted, including correction of typographical errors.

Pay Attention to Changes surrounding the Certification that May Affect its Validity

When the facts surrounding a certification change, USCIS evaluates whether those changes affect the certification's validity. If they do not, the certification needs no change. If they do, USCIS will deny the preference petition.

What Changes Will Require Evaluation by the USCIS of the Continuing Validity of the Labor Certification?

Most changes that require USCIS to review a certification's continuing validity involve the following issues:

  1. The employment relationship ends, which affects the identity of the foreign person named in the certification.
  2. The job location changes, either because the employer relocates or the foreign person is transferred to a different employer work site.
  3. The employer's name or ownership changes.
  4. The position's job duties or salary level change substantially.

Current Trends of PERM Application

Although local job market conditions determine whether labor certification is possible, certain trends are clear.

  1. Visas More Available for Skilled Workers: In practice, immigrant visas are available only for jobs requiring at least two years of additional training and experience. The cause is the backlog in the other workers category of the third employment-based preference, so long that most job offers will not survive the delay.
  2. Geographical Areas and Job Types are Important: The number of jobs in a particular area affects the job market. For example, proving a shortage of hotel managers in a resort area is difficult, because such jobs and locations attract many qualified U.S. candidates. In general, the U.S. economy and the law favor foreign persons whose job capabilities and skills are not readily obtainable in the U.S. labor market.
  3. Jobs at Opposite Ends of Spectrum Have More Chance of Approval: Labor certification is generally easier to obtain for job skills at either end of the spectrum. For example, a scientist experienced in advanced molecular biochemistry will likely receive certification. Likewise, an attendant for a coin operated laundry at the prevailing wage may be unable to find willing U.S. workers to fill the position because of the low wage and unfavorable job conditions.