The first step in nearly all employment-based, permanent residency cases is Labor Certification (LC). The goal of the LC process is to determine that the insufficiency of U.S. workers in the local area warrants the hiring of a foreign worker for a particular position. The local labor market is tested via advertising and other competitive recruitment. Under the PERM process, recruitment is conducted prior to filing to test the market. Recruitment includes two Sunday print advertisements, and for certain occupations, further forms of recruitment such as job search websites, postings on company websites, employee referral programs, or local newspapers. A job order with the State Workforce Agency is also required. Upon completion of the recruitment, an Audit File is created that includes the evidence of recruitment as well as information on the company's existence, ability to pay, and the credentials of the foreign national. A PERM case can be submitted either electronically or through the mail, though generally it is recommended to file electronically. A decision takes an average of 45-60 days. However, processing times change constantly, thus, please check the DOL’s website at noted in the useful links on this website for current processing time frames. Moreover, the application may be subject to a selective or random audit, which can increase the expected processing time.
Please note that applying for a labor certification does not bind the employer legally. The employer remains free to dismiss the employee or to take other personnel action as it would with regard to any other employee. Also, the employer may withdraw the labor certification application at any time.
On the other hand, the application does not bind the employee to the employer either. However, it is important, before expending great amounts of time and effort that the employee is sure that there is relative job stability and that the employee will be remaining with the employer at least until the whole process has been completed.
Qualifying Criteria
- Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations;
- The employer must hire the foreign worker as a full-time employee;
- 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 addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity; and
- The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
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:
- Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: 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.
- Pre-Filing Recruitment Steps. All 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 occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
- I. Pre-Filing Recruitment Steps. All 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 occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
I. Posted Notice
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.
II. Use of Other In-House Media
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.
IV. Advertisements
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.
V. Three Additional Recruitment Steps for Professional Jobs
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.
Distinguishing between Professional and Non-Professional Jobs
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.
- Recruitment Report
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.
- Filing the Application.
The employer has the option of filing the ETA Form 9089 electronically (using web-based forms and instructions) or by mail.
- Online Filing. The Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed. The employer can access a customer-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
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).
- Application. Once all of the required steps have been taken and the employer has received their registration/log on information from the DOL, the employer must complete an Application for Permanent Employment Certification (ETA Form 9089). The application describes in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications. The application will list all of the recruitment steps taken as well.
- Signature requirement. Applications 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 labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
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.
- 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 the application was filed.