Labor Certification (PERM)
PERM Labor Certification Process
PERM Labor Certification Law and Considerations:
We understand that foreign nationals, their Human Resources representatives and their managers are concerned about the labor certification process. This memo is intended to provide an overview of the legal process surrounding labor certifications.
We understand and value the contributions foreign nationals make to the U.S. We are, however, limited by the rules and regulations of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS, previously INS), and must work within those laws as described below. By understanding these laws, you can help us to build the strongest case possible for your employee.
For most foreign nationals, the labor certification process, which is conducted by DOL, is the first step in the three-step process of obtaining employment-based lawful permanent residence (LPR) status. The second stage of the LPR process is the I-140 Immigrant Petition, filed by the employer with USCIS. The third stage is the employee’s application for permanent residency, filed either as an Adjustment of Status application with USCIS, or through the appropriate U.S. consulate abroad. There are specific challenges at each stage of processing, and this memo focuses specifically on those presented by labor certification itself.
The legal premise of labor certification applications (commonly referred to as “labor certs”) is that the employer must prove that there are no U.S. workers (this means U.S. citizens and U.S. permanent residents) who are available for the position who meet the requirements for the position.
Labor certification is the exception, not the rule. The labor certification program was designed for the unusual circumstance where there are not enough U.S. workers available for a particular position. The U.S. economic boom in the 1990’s changed things for a short period of time, such that most employees were able to obtain labor certs for professional employees without much trouble. That was, however, a brief anomaly in the course of the history of the labor certification program. The government sees the H and L temporary worker visa programs as just that—the worker is here temporarily for five to seven years and then returns to his or her home country.
Filing a labor cert does not mean that the labor cert will be approved or that permanent residence will be granted. A labor cert cannot be approved unless DOL determines that there are no qualified U.S. workers available for a particular job. Any employer or attorney who promises a labor cert approval or permanent residence is not explaining the entire picture. In addition, note that the employer may in its discretion withdraw a labor certification application at any time.
While the nature of the job market (and the number of U.S. workers available) is a critical factor beyond our control that will impact the success of a labor certification, careful planning and case strategizing at the onset is also critical to maximize the likelihood of success of any application.
Processing a Labor Certification Application
DOL sees every job filled by a foreign national with temporary work authorization (e.g. H-1B or L-1 status) as an “empty chair.” The employer must make every effort to try to hire U.S. workers for open positions and must document its efforts. Only after the employer submits proof of recruitment efforts that meet DOL standards, and if DOL determines that there are no U.S. workers available, can the labor certification be certified.
DOL is concerned with only one thing: protecting U.S. workers and denying the labor cert if any U.S. worker meets the minimum requirements (not the ideal, standard, or preferred requirements). A difficult and frustrating fact is DOL is not concerned that a very skilled and experienced foreign national is currently in the position. DOL is not concerned that the foreign national may be more qualified and a better employee than any U.S. worker applicant, and does not care about the employer’s investment of time and training in the incumbent foreign national. This, of course, conflicts with the way any smart employer goes about hiring employees.
PERM (Program Electronic Review Management)
The PERM program, a new electronic processing system for labor certification, took effect March 28, 2005, and is now the only method for filing labor certification applications.
PERM allows employers to file electronically or by mail, although DOL strongly prefers that employers file electronically. Applications submitted by mail will be entered manually by contractors at DOL, which creates a possibility of data entry errors and denial. Employers who wish to submit their applications electronically must register in advance with DOL, providing information regarding the employer’s existence, physical location, and authorization to do business. Registration is linked to the employer’s federal Employer Identification Number (EIN), so companies that have divisions with separate EINs will have an additional step at registration. In order for SRW to assist with filing a labor certification, the employer must also create a sub-user account for the appropriate SRW attorney. SRW can assist with this registration process.
Form 9089, the labor certification application, is an attestation-based system, which the employer submits under penalty of perjury. The form requires the employer to provide detailed information about the duties and responsibilities of the position, the salary and prevailing wage, the minimum requirements for the position, and any special skills required. In addition, the employer must provide detailed information regarding recruiting efforts and results, and must disclose any layoffs within the preceding six months in the employee’s area of employment, if these were for the same or a related occupation.
Duties and Responsibilities of the Position
DOL uses the O*Net system, which assigns all possible occupations to a limited number of “standard” classifications. In addition, the O*Net system specifies what DOL views as the standard requirements for each occupation. Where a position combines the duties and responsibilities of two or more occupations, this must be disclosed and justified on the application form. (For example, at a small employer, the Office Administrator might also serve as Web Developer.) In addition, the detailed duties and responsibilities of the specific position directly affect the prevailing wage determination. An accurate description of the duties of the position is essential to preparing a successful labor cert.
Labor certification requires the employer to set forth the minimum requirements for the position, including any degree required, the specific number of years of experience required (if any), and any necessary training or special requirements. The employer may use only these minimum requirements to evaluate candidates who respond to recruitment for the labor cert. Any labor cert must meet the following four tests:
1. The minimum requirements for the position must be the same as for other similarly situated employees at the employer.
Example: If Software Engineer I’s are hired with a B.S. degree and no experience, you cannot require a B.S. plus three years experience for a Software Engineer I on the labor cert, even if the foreign national had three years experience at the time of hire
2. The foreign national must meet all of the minimum requirements at the time of hire.
Example: The labor cert requires a master’s degree. If the foreign national had not yet completed a master’s degree at the time of hire, the foreign national will not meet the requirements for his or her own labor cert, and will not be able to use it to gain permanent residence. Finishing the master’s degree at a later date does not change this result.
3. Experience gained at the employer in the position cannot be counted as meeting the minimum requirements. This is a very important concept. DOL’s position is that if the employer is willing to hire and train a foreign national on the job, it must be willing to offer a U.S. worker that same opportunity.
Example: An employer hires a foreign national as a Customer Engineer I with a B.S. and no experience. The foreign national then gains two years experience on the job. The employer cannot claim that two years experience is required for the position, because the foreign national did not have two years experience when he or she was hired.
4. The minimum requirements cannot exceed what DOL determines is standard for the position and the industry.
Example: A high-tech employer states on its labor cert that for the position of Receptionist the minimum requirement is a master’s degree in any type of engineering. The employer requires this degree because the Receptionist must be able to answer technical questions asked by callers. Even if all of the employer’s Receptionists do indeed have master’s degrees, DOL will not allow that to be a minimum requirement for a Receptionist because it is not the standard requirement for the occupation.
Note that the O*Net standard requirements may be only two to four years experience for many professional occupations. Where the employer requires a higher level of experience or education, this must be justified by arguing the “business necessity” of the additional requirements. Any business necessity argument will likely subject the application to an audit.
Special Skills or Requirements
We frequently hear from employees, “My job requires special skills and that means we can file a labor cert.” The requirement of special skills alone does not mean that a labor cert can be filed or that it will be approved. Remember, getting a labor cert approved ultimately depends on whether there are U.S. workers available.
If a position requires certain special skills, there may be fewer U.S. workers available, which is advantageous for approval. Keep in mind, however, that the employer cannot include any skills gained at the petitioning employer as a minimum requirement. The foreign national must be able to document that all skills required for the position were obtained prior to working for the petitioning employer and prior to the date the labor cert was filed.
Additionally, any labor cert that contains a long list of special skills required will be seen by DOL as “tailored” to the foreign national in an effort to exclude U.S. workers. Tailoring is grounds for denial of the labor certification application. If DOL sees the list of requirements as too restrictive, it may lead to an audit or to denial of the application. In addition, special requirements will often increase the prevailing wage determination for the application.
In filing a labor certification application, the employer commits to pay the prevailing wage for the position at the time that permanent residence is approved. The prevailing wage is determined by the applicable State Workforce Agency (SWA), based on a four-level wage system. The prevailing wage level may be increased based on education and experience requirements that are higher than the “standard;” supervisory responsibilities; or special skills or requirements. Alternative wage surveys may be used in some circumstances.
Effect of Layoffs
As part of its recruitment efforts, DOL expects an employer to offer any “open” or labor cert position to all laid off workers who are qualified. The labor certification form requires the employer to indicate whether there have been layoffs in the area of employment in the sameor a related occupation, and specifically asks whether the employer has notified and considered laid off workers of the position. Any layoff will likely trigger an audit. If the employer cannot document that position has been offered to laid off employees, the application will be denied.
For purposes of labor certification, a layoff is any termination of one or more employees for reasons other than “good cause.” A related position is one that involves 50% or more of the same duties and responsibilities.
Recruitment under PERM
Under PERM, the employer must:
- Run two Sunday ads in the newspaper of general circulation for the geographic area
- Post a notice at the work site
- Use all internal media normally used in recruitment
- Place a job order with the State Workforce Agency
Additionally, for professional positions (those for which a bachelor degree is normally required), the employer must use three additional recruitment methods from the following list of ten options:
- Job Fair
- Employer Web Site
- Job search web site
- Employee referral program
- Local or ethnic newspaper
- On-campus recruiting/interviews
- Trade or professional organization
- Private employment firm
- Campus placement office (posted notice)
- Radio or TV ads
As with any type of labor cert, the employer must demonstrate that there are no U.S. workers available who meet the minimum requirements for the position before submitting its labor certification application. The employer must review all candidates who apply for the position, and contact all who appear to be qualified. If applicants are qualified, the application cannot be filed. For each candidate who is not qualified, the employer must provide a lawful job-related reason for the lack of qualification. Resumes must be scrupulously tracked and retained in order to file the case.
Once recruiting is complete, the employer must summarize all of its recruitment results.The employer must account for all applicants and must specify the lawful reasons why candidates were rejected. Although DOL will not supervise the recruitment, it will audit some percentage of applications randomly. DOL may also audit any applications that appear out of the ordinary (e.g. the employer’s “business necessity” requires minimum requirements above the standard requirements in O*Net) or those applications for which they have questions. When a case is audited, the employer will have only 30 days to provide the requested information, so the employer must prepare in advance for an audit in every case.
Role of Attorney in Process–Response to Fragomen Investigation
In response to the scandal and aftermath of the DOL’s June 2008 announcement that it will be auditing all PERM cases filed by the law firm of Fragomen, Del Rey, Bernsen and Loewy, LLP, the DOL has released guidance on the parameters and important role an attorney plays in the PERM process.
It is unclear at this time the scope of the DOL’s investigation into Fragomen, Del Rey, Bernsen and Loewy, LLP cases or the facts of alleged improper representation. SRW has reviewed this new guidance and confirms that our procedures and representation meet DOL requirements for the PERM process.
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