PERM Labor Certification: Procedure Overview
The PERM Labor Certification system went into effect on 3/28/2005.
PREVAILING WAGE DETERMINATIONS
A Prevailing Wage Request is submitted to the US Department of Labor. The US Department of Labor evaluates the particulars of the employer’s job offer, such as the job duties and requirements for the position and the geographic area in which the job is located, to arrive at a Prevailing Wage Determination.
FILING AND INITIAL PROCESSING BY DEPARTMENT OF LABOR
Employers must conduct required advertising & recruitment prior to the online filing of the ETA Form 9089. Only the ETA Form 9089 is submitted to the Department of Labor; all supporting documents are retained by the employer for presentation in the event of an audit. Upon receipt of ETA 9089, the Department of Labor will conduct an initial review of the application to see that it is acceptable for processing. If it is, a computer system will review the application based upon various selection criteria that will allow problematic applications to be identified for audit (the Department of Labor does not release any information on what these selection criteria are and they change them periodically to deter fraud). Additionally, as a quality control measure, some applications are randomly selected for audit without regard to the results of the computer analysis. In some cases, the Department of Labor also confirms specific information with employers as well. On any application, the Certifying Officer has the authority to request additional information before making a final determination.
CERTIFICATION & EXPIRATION
If an application is not selected for audit, and satisfies all other reviews, the application will be certified and returned to the employer. The employer must immediately sign the application and then submit the certified application to the US Citizenship and Immigration Services in support of an I-140 petition. A labor certification will expire if not filed in support of an I-140 within 180 days of certification.
AUDITS
If an application is selected for audit, the employer will be notified and required to submit documentation specified in the regulations to verify the information stated in or attested to on the application. Upon timely receipt of an employer’s audit documentation, it will be reviewed by the Department of Labor. If the employer does not submit a timely response to the audit letter, the application will be denied. If the audit documentation is complete and consistent with the employer’s statements and attestations contained in the application, and not deficient in any material respect, the application will be certified. If the audit documentation is incomplete or inconsistent with the employer’s statements and/or attestations contained in the application, or if the application is otherwise deficient in some material respect, the application will be denied and a notification of denial with the reasons therefore will be issued to the employer.
SUPERVISED RECRUITMENT
The Certifying Officer may order supervised recruitment for the employer’s job opportunity, such as where questions arise regarding the adequacy of the employer’s test of the labor market. The supervised recruitment is similar to the prior regulations for recruitment under basic processing under the previous labor certification system, which required placement of advertisements in conjunction with a 30-day job order by the employer. This recruitment, however, will be supervised by the Department of Labor’s Certifying Officers rather than by the SWA as under the old system. At the completion of the supervised recruitment effort, the employer will be required to document in a recruitment report the outcome of such effort, whether successful or not, and if unsuccessful, the lawful job-related reasons for not hiring any US workers who applied for the position. Upon review of the employer’s documentation, the Certifying Officer will either certify or deny the application.
APPEALS
In all instances in which an application is denied, the notification will set forth the deficiencies upon which the denial is based. The employer will be able to seek administrative-judicial review of a denial by the Board of Alien Labor Certification Appeals.
RETENTION OF DOCUMENTS
Employers are required to retain supporting documentation for the labor certification filing for 5 years from the date the Application for Permanent Employment Certification is filed with the US Department of Labor.
PERM Labor Certification: A Closer Look at the Advertising Requirements
In the six months prior to filing an application, all employers are required to place a job order with the SWA for a period of 30 days and run two newspaper advertisements in Sunday papers. Employers of professionals are required to conduct three additional types of recruitment from a supplemental list of recruiting methods. While any advertising needs to be done within six months prior to filing an application, they do not need to be spaced properly across the six months as with the RIR applications under the prior labor certification system. The only timing requirement is that the two newspaper requirements and the job order must be placed more than 30 days but less than 180 days before filing the application. The two Sunday advertisements can now be on two consecutive Sundays.
MANDATORY ALL POSITIONS:
1) 2 Sunday Ads in Newspaper
2) 30 Day job order
ADDITIONAL REQUIREMENTS FOR PROFESSIONAL POSITIONS: 3 from the list below required:
· JOB FAIRS: Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
· EMPLOYER’S WEBSITE: The use of the employer’s Website as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
· JOB SEARCH WEBSITE OTHER THAN THE EMPLOYERS: The use of a job search Website other than the employer’s can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements required of this section can serve as documentation of the use of a Website other than the employer’s.
· ON-CAMPUS RECRUITING: The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posed by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.
· TRADE OR PROFESSIONAL ORGANIZATIONS: The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
· PRIVATE EMPLOYMENT FIRMS: The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
· EMPLOYEE REFERRAL PROGRAM WITH INCENTIVES: The use of an employee referral program with incentives can be documented by providing dated copies of employer notices and memoranda advertising the program and specifying the incentives offered.
· CAMPUS PLACEMENT OFFICES: The use of a campus placement office can be documented by providing a copy of the employer’s notice of the job opportunity provided to the campus placement office.
· LOCAL AND ETHNIC NEWSPAPERS: The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains an employer’s advertisement.
· RADIO AND TELEVISION ADVERTISEMENTS: The use of radio and television advertisements can be documented by providing a copy of the employer’s text of the employer’s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.