Labor Certification (PERM) for EB-2 and EB-3 Workers
Effective March 28, 2005, labor certification applications for the permanent employment of foreign nationals must be filed in accordance with Program Electronic Review Management (PERM) regulations. Generally, the process of obtaining lawful permanent residence through employment commences with the filing of a labor certification application. A labor certification is a determination by the Department of Labor (DOL) certifying that the employer recruited for the position and was unable to find a willing, available, and qualified candidate. The application involves information about the job offer and qualifications of the prospective worker.
- Identifying the job requirements:
Job requirements must be the actual minimum requirements for the position. The employer must be able to justify each requirement in relation to the job description. Requirements other than those essential to perform the job duties in a reasonable manner will be considered “unduly restrictive” and generally disallowed by the DOL. However, the employer can show a business necessity to justify the extra requirement. Additionally, the requirements cannot be tailored to the foreign worker’s specific skills and qualifications if they are not the actual minimum requirements. Chavez & Valko will assist the employer in identifying the minimum requirements for the position.
- Prevailing Wage Determination:
Under PERM, the employer must request a prevailing wage determination (PWD) by using a designated form from the applicable State Workforce Agency (SWA). The PWD is the prevailing local range for the occupation sought as determined by a government or alternate survey. The employer must offer to pay 100% of the prevailing wage (a 5% variance is no longer acceptable). The PWD must be obtained prior to filing the labor certification application and must be retained in the event of an audit. The PWD will be valid for no less than 90 days, but for no more than 1 year. The employer may also use other sources to determine the PWD, such as selected private surveys and use of the Davis Bacon Act and McNamara-O-Hara Service Contract Act. The employer may include bonuses, commissions, and cost-of-living allowances in determining the employee’s wage, so long as these amounts are guaranteed by the employer and are not discretionary. If the employer disagrees with the PWD, the possibility of appeal exists. Chavez & Valko will work closely with the employer in determining the prevailing wage from the SWA or by using alternate sources.
The following recruitment activities are required prior to filing the labor certification application:
- Job posting notice at the worksite
- Job order with the SWA for a period of 30 days.
- Required newspaper ads
Additionally, if the position is considered a professional occupation (generally, a job that requires a bachelor’s degree or higher) PERM regulations require the employer to utilize three (3) of the following types of recruitment:
- Job fairs
- Employer’s web site
- Job search web site other than employer’s
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program
- Job notice at a campus (if only a degree is required)
- Local or ethnic periodicals as it relates to the position
- TV and radio ads
The employer must conduct these additional recruitment steps no more than 180 days from filing, and only one may take place within 30 days of filing the labor certification application.
- Reporting the Recruitment Results:
The employer must retain a report detailing the steps taken to find other employees for the job. The report must have information about the types of recruitment, number of applicants, the results of each recruitment step, and the lawful reasons for rejection. We will provide the employer with a blank report for documenting recruitment results and additional information on valid reasons for rejection. The employer must keep all supporting documentation regarding recruitment for at least 5 years from the date of filing the labor certification application.
After recruitment, the labor certification application (ETA Form 9089) is filed electronically.
If the application is approved, the Certifying Officer will send the certified application and final determination to the employer. The labor certification will be valid for only 180 days, so it is important that the employer file the proper immigrant visa petition soon after approval. If the application is denied, the final decision should state the reasons for denial and advise the employer of the review process. At Chavez & Valko, our lawyers will review your labor certification denial and determine grounds for appeal.