Labor Certification Under “PERM”

Obtaining permanent residence in the United States based upon an offer of permanent employment can be a difficult and protracted process. That process includes in most cases undertaking defined recruitment steps appropriate to the industry and occupation in which a job opening is to be filled and subsequent filing of an application for labor certification under the United States Department of Labor (“USDOL”) new “PERM” Regulations.

Only after this recruitment has been completed and USDOL has issued its formal “labor certification” may an employer normally proceed with the filing of a preference petition with US Citizenship and Immigration Services (“USCIS”, formerly, Immigration and Naturalization Service) on behalf of the foreign worker to be hired permanently in the position offered. The process concludes with the filing of individual applications for adjustment of status through USCIS or for immigrant visas with an American consular office outside the United States.

This memorandum is part of a series of informal memos we have prepared for our clients and friends explaining basic immigration and visa-related concepts. It discusses only the general requirements and procedures that must be followed to obtain labor certification under the PERM System. The various employment-based immigrant preference categories and application process for adjustment of status or immigrant visa processing are addressed separately.

Recent Developments:

On May 17, 2007, the USDOL published a final rule in the Federal Register making significant changes to the PERM System. Of most importance, these changes – most of which went into effect on July 16, 2007 – include the following:
• Prohibits the “substitution of beneficiaries” on an application for permanent employment certification;
• Sets a maximum validity on an approved application of 180 days unless it is used to support an immigrant preference petition, Form I-140, filed with USCIS within that period; and
• Requires employers to pay the costs of preparing, filing and obtaining certification; “an employer’s transfer to the alien beneficiary of the employer’s costs incurred in the application process is strictly prohibited.”

“PERM”

PERM stands for “Program Electronic Review Management” and is the acronym used to denote a “re-tooled attestation-based labor certification process. The system is designed to streamline the labor certification process and reduce backlogs by permitting electronic filing and review. On December 27, 2004, USDOL finally published final regulations to implement PERM; these regulations went into effect on March 28, 2005.

The basic purpose of the labor certification process remains the same as it was under prior practice, and the same standards of review apply. Under the law, USDOL must certify in most employment-based immigrant cases that there are not sufficient US workers who are able, willing, qualified and available for the position offered and that the employment of a foreign worker in that position will not adversely affect the wages or working conditions of similarly situated US workers. Under PERM, however, the mechanism by which employers meet this burden has changed radically.

In most case, employers now have only one option for filing a labor certification application for any position for which a foreign worker is sought and for which the USDOL must certify that there are no qualified US workers available for the position. It is a two-step process: first, the employer must obtain a written prevailing wage determination from the local State Workforce Agency (SWA) and then, after performing and documenting the appropriate recruitment steps as outlined in the new regulations, file a labor certification application with one of two USDOL processing centers.

Most cases will be approved or denied “immediately” based on specific computer-generated criteria. However, some cases will be audited after filing, either because of certain “selection criteria” built into the system but not defined in regulation – criteria generally believed to include certain types of occupations, industries, job requirements, or geographic markets – and some will be audited randomly for fraud control.

USDOL estimates that cases not selected for audit will be processed within 45 to 60 days after filing; a more realistic expectation appears to be 90 -120 days.

Recruitment requirements

USDOL PERM regulations require specific sources of recruitment, while making distinctions between requirements for professional positions and non-professional jobs. The following steps are mandatory in all cases and must be undertaken prior to filing an application under the new procedures:

  1. Placement of a 30-day job order with the local SWA;
  2. In-house posting (“hard copy”) for 10 consecutive business days;
  3. In-house media listing, including employee newsletters and “intranets” or website;
  4. “Newsprint” advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment – must include the name of the employer; the job location; and a description of the job vacancy with enough specificity to apprise applicants of the opportunity available;
  5. NOTE: an ad in a professional journal may substitute for one Sunday newsprint ad if the job requires an advanced degree and experience.

If the job offered is in a “professional occupation,” there of the following 10 optional steps must be undertaken in addition to the mandatory steps listed above:

 

  1. Local or national job fairs
  2. Employer’s external web site
  3. Job search web sites, including newspaper electronic listings;
  4.  On-campus recruitment
  5. Trade or professional organizations
  6. Private employment search firms
  7. Employment referral programs with identifiable incentives
  8. Campus placement office (for positions requiring degrees only)
  9. Local/ethnic newspapers
  10. Radio and TV advertising

All recruitment steps must be completed within the 180 days prior to filing the application; only one may take place within the 30 days preceding the filing.

Recruitment Report

Employers will need to prepare a detailed recruitment report that describes all recruitment steps undertaken and the results of recruitment, including the number of hires made as well as number of US workers rejected, categorized by the lawful, job-related reasons for such rejections. Copies of resumes received in response to as need not be submitted but must be maintained. Upon review of the employer’s recruitment report, USDOL may request copies of resumes received for all rejected applicants.

Standards for Assessing Job Applicants

The most significant change in the regulations from prior labor certification practice relates to the employer’s consideration of the qualifications of US workers applying for the position offered. As before, any applicant’s failure to meet the employer’s stated minimum requirements for the position is a lawful, job-related reason for rejection. However, if an applicant lacks a skill that may be acquired during a “reasonable” period of “on the job” training, that may not be considered a lawful basis for rejecting an otherwise qualified worker. The “reasonable” period is not defined in the regulation and will likely vary according to occupation and industry.

Post-filing Audits

USDOL will review applications based on various selection criteria that will identify certain applications for post-filing audit. As indicated above, the regulations do not enumerate specific selection criteria, but they are likely to include various geographic areas, designated industries, certain types of occupations, and “restrictive” or “excessive” job requirements. The initial review will be conducted by pre-determined computer scoring. In addition, some applications will be randomly selected for audit to deter fraud in general. Certifying Officers are authorized to request additional information and supporting documentation.
If audited, the employer will be notified and given a 30-day window in which to provide specific documentation to verify the information submitted in the application. The documentation will be reviewed and the application then either certified or denied if still incomplete or the documentation provided does not support statements in the application.

Finally, Certifying Officers also have the option in audited cases of ordering the employer to conduct supervised recruitment if he or questions the adequacy of an employer’s test of the labor market. The supervised recruitment process will be conducted by the processing center handling the application, but will otherwise resemble the traditional labor certification process at a local SWA. At the end of this supplemental recruitment period, the employer will be required to submit another recruitment report outlining the lawful, job-related reasons why US worker candidates were rejected.

Terms & Concepts

The following are some technical terms and concepts that are key to understanding the labor certification process:
Offer of Employment: an employer may only offer the foreign worker a bona fide job for which it has demonstrated that no qualified American workers are available.

Priority Date: the date on which USDOL receives the application establishes the alien’s priority date. It denotes the alien’s place on the immigrant visa waiting list and determines when an immigrant visa will be available.

Prevailing Wage: the required rate of pay for the occupation in the area of intended employment, as determined by the SWA. The employer must meet the prevailing wage standard.

“Business Necessity”: certain job duties and/or qualifications requirements are presumed to be excessively restrictive and normally disallowed by USDOL. Such specific requirements such as graduate-level degrees; foreign language ability, job descriptions that combine duties normally considered part of separate jobs, and knowledge of multiple computer languages or applications generally fall within this presumption. In such cases the employer must explain why its stated requirements are essential for the performance of the job duties.

 

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