What is labor certification?
Certain employment-based immigrant visas require approval from two different agencies: the Department of Labor (DOL) and USCIS. The approval required from the DOL is the first step and is known as labor certification.
To obtain labor certification from DOL, the employer must establish no Americans are qualified for and want the particular job and the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed US workers. The process for doing so is known as PERM, which stands for Permanent Electronic Review Management.
(Please note: The PERM labor certification process for EB-2 and EB-3 categories is not necessary if the foreign national possesses an “exceptional ability” in the sciences, arts or performing arts, known as Schedule A II occupations. See our related article Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability)
What are the requirements of PERM
PERM describes the recruitment procedures an employer must follow in order to obtain a labor certification from the DOL. The PERM procedures vary somewhat depending on whether the job is a professional or non-professional job. Also, special procedures exist for sheepherders, college or university teachers and professors, and Schedule A occupations.
This article will only address requirements for professional and non-professional jobs.
General job requirements: The position offered must be full-time, permanent (as opposed to seasonal or temporary) and it must be a bona fide job opening available to U.S. workers. The employer must pay at minimum the prevailing wage for that type of position in the region of intended employment.
The job requirements must conform to what is normally required for the occupation in the United States. It may not be tailored to the desired foreign worker’s qualifications and it cannot be unduly restrictive, such as requiring foreign language capability, unless these restrictive requirements can be established to arise out of business necessity.
Recruitment steps: PERM requires the employer to follow a series of recruitment steps, the details of which differ depending on if the job is a professional or non-professional occupation.
20 CFR 656.3 defines a professional occupation as “an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.” Work experience may be accepted in lieu of a degree, however, provided certain PERM recruiting and application procedures are followed. Generally, the law requires that if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on Form ETA 9089, the Application for Permanent Employment Certification form.
In addition, alternative recruiting procedures exist for college and university teachers, which is outside the scope of this article.
Types of advertising: There are several forms of advertising and recruitment an employer must conduct as part of the labor certification process, including:
• Mandatory advertising: There are two forms of mandatory advertising: The position must be advertised 1) via a job order placed with the state and 2) in two print advertisements (i.e. Sunday newspaper and a professional journal). This advertising must be conducted at least 30 days, but no more than 180 days, before the filing of the application.
• Additional recruitment steps: The employer must do at least three of the 10 recruiting steps named in the list below. Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the labor certification application. None of the steps may have taken place more than 180 days prior to filing the application.
1. Job fairs.
2. Employer’s Web site.
3. Job search Web site other than the employer’s.
4. On-campus recruiting.
5. Trade or professional organizations.
6. Private employment firms.
7. Employee referral program with incentives.
8. Campus placement offices.
9. Local and ethnic newspapers.
10. Radio and television advertisements.
For a non-professional job, the employer must at a minimum, place a job order with the state and advertise in two different Sunday editions of a general circulation newspaper. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.
No other recruitment steps are required.
Labor Certification Employee Notice Requirement: The employer must give notice of the intent to file a labor certification application in connection with the available position to the employees’ bargaining representative. If no such representative exists, the employer must inform its employees by posting a notice in a conspicuous place at the job site for 10 days. This posting must take place between 30 and 180 days of filing the labor certification application. The notice must also be published on any in-house media.
Post-advertising requirements: After advertising, the employer must interview all qualified candidates who responded to the advertisements. For all candidates not selected, the employer must document the reason. The employer must prepare a recruitment report for submission to the DOL describing the recruitment steps taken and the outcome.
Employers must keep in mind that a U.S. worker is considered qualified for the job if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the-job training. In other words, an employer cannot reject a U.S. worker because he lacks the necessary skills if that worker can acquire the skills through on-the-job training.
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 DOL prior to rendering a final determination.
Application Process: Once the recruitment phase is finished the employer will fill out DOL Form ETA 9089, Application for Permanent Employment Certification and file it electronically with the DOL. Paper submissions are also accepted. When an approved labor certification is received, the employer may then file the I-140 immigrant visa petition. Upon receiving an approved I-140, the foreign national can then apply for an immigrant visa at his home consulate. If the foreign national is already in the U.S. he can apply for permanent residency based on the approved I-140.