The labor certification process, also known as PERM (Program Electronic Review Management), is a critical step in the employment-based immigration system in the United States. It ensures that employers seeking to hire foreign workers for permanent positions do so without adversely affecting the job opportunities, wages, and working conditions of U.S. workers. The process is rigorous and involves multiple steps to ensure compliance with U.S. Department of Labor (DOL) regulations. Here’s an in-depth look at how the PERM process works and the steps employers need to take to obtain labor certification:
Overview of PERM Labor Certification
The PERM process is the first step in obtaining an employment-based green card for a foreign worker. It involves demonstrating that there are no qualified U.S. workers available for the position and that hiring a foreign worker will not negatively impact the U.S. labor market. The employer must adhere to strict guidelines and complete several steps to obtain a labor certification from the DOL.
Steps to Obtain a PERM Labor Certification
Step 1: Define the Job Opportunity
The employer must clearly define the job opportunity, including job title, duties, requirements, and working conditions. This includes specifying the minimum education, experience, and skills required for the position. The job must be a bona fide, full-time position, and the requirements should be based on the actual job duties, not tailored to the foreign worker’s qualifications.
Step 2: Request a Prevailing Wage Determination (PWD)
Before proceeding with the recruitment process, the employer must obtain a Prevailing Wage Determination (PWD) from the DOL’s National Prevailing Wage Center (NPWC). The prevailing wage is the average wage paid to similarly employed workers in the geographic area where the job is located. To request a PWD, the employer must submit Form ETA-9141 to the NPWC, detailing the job duties, requirements, and location. The NPWC will then issue a PWD, which establishes the minimum wage the employer must offer to the foreign worker.
Step 3: Conduct Recruitment Efforts
The employer must conduct a comprehensive recruitment effort to test the U.S. labor market and determine if there are qualified U.S. workers available for the job. The recruitment process involves several steps:
- Job Order: The employer must place a job order with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. The job order must be consistent with the terms and conditions of employment stated in the labor certification application.
- Newspaper Advertisements: The employer must place two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. The advertisements must include the job title, duties, requirements, and instructions for applying.
- Additional Recruitment Steps: For professional positions (those requiring a bachelor’s degree or higher), the employer must conduct at least three additional recruitment steps from a list provided by the DOL. These steps may include:
- Job fairs
- Employer website posting
- Job search website posting
- On-campus recruiting
- Trade or professional organization posting
- Private employment firm
- Employee referral program with incentives
- Campus placement offices
- Local or ethnic newspapers
- Radio and television advertisements
- Notice of Filing: The employer must post a Notice of Filing at the worksite where the foreign worker will be employed. The notice must be posted for at least 10 consecutive business days and must be in a location where employees can easily see it. Additionally, if the position is covered by a collective bargaining agreement, the employer must notify the bargaining representative.
Step 4: Document the Recruitment Process
The employer must carefully document all recruitment efforts, including copies of advertisements, job order placements, and resumes received from U.S. applicants. The employer must review and evaluate all applications to determine if any U.S. workers meet the minimum qualifications for the job. If qualified U.S. workers are found, the employer must provide a detailed explanation as to why they were not hired.
Step 5: Complete and Submit ETA Form 9089
After completing the recruitment process and determining that there are no qualified U.S. workers available for the job, the employer must complete ETA Form 9089, the Application for Permanent Employment Certification. The form includes detailed information about the employer, the job opportunity, the foreign worker, and the recruitment efforts. The employer must attest to the accuracy of the information and the bona fide nature of the job opportunity.
Step 6: Submit the Application to the DOL
The completed ETA Form 9089 can be submitted electronically through the Foreign Labor Application Gateway (FLAG) system or by mail. The DOL will review the application to ensure compliance with all regulatory requirements. The review process involves verifying the prevailing wage, recruitment efforts, and job requirements.
Step 7: DOL Review and Decision
The DOL will review the application and either approve, deny, or audit it. If the application is approved, the employer can proceed with the next steps in the immigration process, such as filing an I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS). If the application is denied, the employer may appeal the decision or reapply. If the application is selected for audit, the employer must provide additional documentation to support the application.
Key Considerations for Employers
Compliance with Recruitment Requirements
Employers must strictly adhere to the DOL’s recruitment requirements to ensure that the labor certification process is valid. This includes conducting all required recruitment steps, documenting recruitment efforts, and evaluating U.S. worker applicants fairly and objectively.
Timeliness of Recruitment Efforts
The recruitment efforts must be conducted within specific timeframes. For example, the newspaper advertisements and additional recruitment steps must be completed within 180 days of filing the labor certification application, with the job order placed within 30 to 180 days of filing. Employers must ensure that all recruitment activities are timely and properly documented.
Accuracy of Job Requirements
The job requirements stated in the labor certification application must accurately reflect the actual job duties and qualifications. Employers must avoid overstating or understating job requirements to either match the foreign worker’s qualifications or to deter U.S. worker applicants. The requirements should be based on industry standards and the actual needs of the job.
Recordkeeping and Documentation
Employers must maintain thorough records of all recruitment efforts, including copies of advertisements, job orders, resumes, and evaluation notes. Proper documentation is crucial in case of an audit or if additional information is requested by the DOL. Employers should also keep records of correspondence with the SWA and any other entities involved in the recruitment process.
Legal and Ethical Considerations
Employers must conduct the PERM process in a legal and ethical manner, ensuring that all U.S. worker applicants are given fair consideration and that the foreign worker’s qualifications are accurately represented. Employers should seek legal counsel if they have any questions or concerns about the PERM process to ensure compliance with all regulations.
Conclusion
The PERM labor certification process is a complex and detailed procedure that requires careful planning and execution by employers. By following the steps outlined above and adhering to DOL regulations, employers can successfully navigate the process and obtain labor certification for their foreign workers. Proper documentation, timely recruitment efforts, and adherence to job requirements are critical to the success of the PERM process. Employers should also be prepared to respond to audits or additional information requests from the DOL to ensure that their applications are approved.
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