A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the USCIS the employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the 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.
In December 2004, the ETA overhauled the operations of the permanent labor certification program and implemented a new re-engineered permanent labor certification program: Program Electronic Review Management (commonly referred to as PERM). PERM’s effective date was March 28, 2005. As of this date, applications for permanent labor certification had to be filed under the PERM process at the appropriate National Processing Center.
Process for Filing
The application will be submitted to the DOL by the employer using the ETA Form 9089. However, all of the following steps must be taken before the application can be filed:
The employer must post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage. The primary purpose of the posted notice is to give employees an opportunity to comment on the application and that the posted notice is not another way to recruit US workers. The notice must include a statement that any person may provide documentary evidence bearing on the application to the DOL Certifying Officer.
In addition to the printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. This appears to allow employers to avoid listing executive-level positions in in-house media if it is not normal practice to do so. The ETA Form 9089 form does not specifically require the employer to attest that he or she has advertised the job through in-house media. Duration of the in-house media notification may be as long as other comparable positions are posted.
III. Job Order
The employer must place a job order with the SWA for a period of 30 days. ETA Form 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.
The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ads may be placed on consecutive Sundays. If the job is located in a rural area with no Sunday edition, the employer may use the edition with the widest circulation. However, the use of a suburban newspaper on a day other than Sunday is not allowed. Placement of the ad under an inappropriate heading or keyword would be considered a failure to make good-faith efforts to recruit U.S. workers.
The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the vacancy specific enough to apprise US workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on ETA Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage.
Proof of publication is usually supplied by the newspaper; however, the employer can also retain the original page of the newspaper bearing the ad so long as it shows the name of the publication and date. ETA Form 9089 requires the employer to list the name of the newspaper and date of publication for each ad. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.
The PERM regulation retains the requirement in the proposed regulations that applications for professional jobs must have additional recruitment. The list of permitted additional recruitment steps under the PERM regulation include: 1) job fairs; (2) employer’s web site; (3) job search web site other than employer’s; (4) on-campus recruiting; (5) trade or professional organizations; or (6) private employment firms; (7) an employee referral program, if it includes identifiable incentives; (8) a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) radio and television advertisements. Further, a web page generated in conjunction with a print ad now counts as a website other than the employer’s. The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month. Only one of the additional recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the employers to specify the dates of each additional recruitment step.
A professional job is a job for which the attainment of a bachelor’s or higher degree is a usual education requirement. DOL published a list of professional occupations in Appendix A to the PERM rule. Appendix A can be found at the DOL’s website. If the occupation is listed on Appendix A, the employer must follow the recruitment regimen for professional occupations. However, the employer may also use the additional recruitment steps for other occupations; particularly for an occupation requiring several years of experience in which the salary is more than $50,000 annually.
Once all of the recruitment is complete (and prior to filing the ETA Form 9089), the employer must prepare a recruitment report that describes the recruitment steps taken and the results. The recruitment report is not filed with the application. It is kept on file at the employer’s principal of business and only submitted in the event of an Audit by a DOL Certifying Officer.
The employer should attach all evidence of the recruitment to the report (i.e. page from newspaper showing the ads, print-outs of the job order, etc.). The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection. The employer must sign the recruitment report.
Be sure to keep all of the resumes received in response to the recruitment efforts sorted by the reasons for rejection. In the event of an Audit, the DOL may also request these.
The employer has the option of filing the ETA Form 9089 electronically (using web-based forms and instructions) or by mail.
Registration for online filing: The electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System. Once an employer has registered and the registration is approved, the DOL will send two emails: one will have the username and password and the other will provide a 4 digit pin number. An employer will need the username and password to log into the online system and prepare the application. The 4 digit pin is needed to submit the application electronically (file it).
After the application has been filed, the DOL may request evidence of the recruitment. In this event, the employer will submit the Recruitment Report (discussed above).
Once a decision has been made, the DOL will update the online system as well as mail an original decision to the employer. If the labor certification is certified, the employer will then file the I-140 Immigrant Visa Petition on behalf of the alien. If it is denied, the employer will have the option of correcting the errors and refilling; or, filing a motion to reconsider within 30 days of the denial.
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