Labor Certification Under PERM

The Department of Labor (DOL) is responsible for the labor certification process through which employers wishing to petition for permanent residency on behalf of a foreign national establish (1) they have tested the labor market and there is no U.S. worker able, willing, qualified, and available to perform the offered job, and (2) the employment of this individual will not adversely affect the wages and working conditions of similarly employed U.S. workers.

DOL determinations are, in most cases, based on employers’ attestations that their efforts to recruit U.S. workers for a job opportunity, following DOL prescribed measures, failed to produce an able and qualified candidate other than the foreign worker.

Labor certifications are filed electronically and processed through DOL’s Program Electronic Review Management System (PERM). The employer is required to submit the evidence supporting the recruitment efforts only where DOL has selected the application for audit, either due to substantive issues or through random selection. In some cases, the outcome of an audit may be an order to conduct a supervised recruitment. If DOL determines that the employer has met all requirements, it certifies the labor certification allowing the employer to move on to filing an immigrant petition with USCIS.

Process

Seeking labor certification involves five steps in most cases:

1. Defining the job and identifying its requirements;
2. Obtaining a prevailing wage determination;
3. Conducting the recruitment and preparing a recruitment report;
4. Preparing and filing the labor certification application; and
5. Responding to DOL audit requests, if applicable.

A DOL Certifying Officer (CO) can compel a sixth step - supervised recruitment - if concerned that the recruitment was not performed in good faith.

Different certification rules apply to occupations for which DOL has certified that there is a nationwide shortage of workers (Schedule A listed occupations), which currently includes physical therapists, professional nurses, and persons of exceptional ability in the arts and sciences (e.g., university professors). Special recruitment and documentation rules also apply to college and university teachers (even those who are not deemed exceptional).

Step One: Identification of Job Requirements

The essence of the recruitment effort is the comparison each applicant’s education, experience and skills to the employer’s minimum requirements and job duties for the recruited position. A mismatched job definition and skill set requirement may well result in the DOL’s rejection of the recruitment effort either because the job as described did not really exist or because the requirements advertised failed to reflect those actually needed to perform the job function.

DOL rules require that in describing and recruiting for a job opportunity, the employer use “actual minimum requirements” of the position. Job requirements must be premised on one of two bases:

1. “Those normally required for the occupation” and which do “not exceed the Specific Vocational Preparation [SVP] level assigned to the occupation” in DOL’s O*NET Job Zones occupation catalog; or
2. The employer’s “business necessity,” i.e., that the job’s duties and requirements “bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.”

DOL COs will continue to exercise their discretion in determining what occupational requirements are and are not “normal” for a position. Absent a business necessity justification, however, COs must use the DOL prescribed determinations for how much experience an employer can require a candidate to have had for a job opportunity. DOL’s intention is to prevent employers from requiring candidates to possess more education or experience than a job would normally require, in order to benefit a preferred non-U.S. candidate.

For example, O*NET establishes an SVP of “7 to less than 8” for “Software Developers, Applications,” which equates to a bachelor’s degree and from two years to up to four years of experience as the baseline requirement. In other words, unless the employer can demonstrate “business necessity”, the employer can require no more than four years of experience from candidates applying for this position. An employer could not, therefore, require candidates to possess a master’s degree absent a showing of business necessity. An employer might document business necessity by demonstrating that the employer develops software applications of such great complexity and for such critical functions that software developers must possess the skills and judgments achieved only through the rigors of a master’s degree program and/or significant prior experience in a specific area.

Foreign Language Requirements

Foreign language skills may also comprise a business necessity-based job requirement depending on either the nature of the occupation or a need for the employee to communicate with particular populations. An occupation may by its essence require foreign language proficiency, as in the case of a translator or language teacher. More common, however, would be instances in which the employee must communicate in a language with “a large majority” of an employer’s customers, contractors or employees. Examples might include:

• An international sales professional responsible for selling solely to companies located in China;
• A factory foreman overseeing a plant in which a large majority of workers speak only Spanish; or
• The manager of a shop where 80{877c034753eacee7259c3c97ae2e02ad1f8f94c95ed6455a0455c04073043e02} of customers are Korean tourists.

Evidence of business necessity in these cases may require providing DOL with substantial documentary evidence. Employers should be aware, however, that including a foreign language requirement in the job description may increase the likelihood that DOL will issue an audit notification.

Combination of Occupations

Many jobs do not fall neatly within DOL’s die-cut occupational descriptions, particularly in smaller organizations. The PERM rules permit an employer to develop job requirements which reflect a combination of occupations provided that it has normally employed workers for that combination or that other companies in the industry customarily employ such workers. If neither factor is present, the employer may attempt to establish that business necessity requires the combination of occupations, which can prove quite difficult. The employer must demonstrate, for example, why there are no reasonable alternatives to combination requirements, such as the hiring of part-time employees, company reorganization, or the purchase of new equipment. The showing must be thoroughly documented and more than a “mere assertion of convenience” by the employer that one head is better than two.

Alternate Requirements

The employer may use alternative experience requirements (i.e., those not customary for the position) provided they are “substantially equivalent” to the primary requirements. DOL will reject certification for a worker already employed by the applicant who qualifies for a job primarily on the basis of alternative requirements unless the employer’s recruitment makes clear that any combination of education, training and experience is acceptable.

Step Two: Obtain Prevailing Wage Determination

The PERM rules require employers to obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). This requires the submission of a form describing the employer, its business, the work location, the job duties, educational and experience requirements, special working conditions and supervisory functions. The DOL does not impose a time limit on the NPWC’s processing of the wage determination request.

The prevailing wage will be determined based on data from one of four sources:

• A collective bargaining agreement, if the position is covered by one;
• An alternative wage survey, if the employer submits wage survey results for similarly employed workers in the area of intended employment, so long as the survey meets acceptable standards for sample size, statistical methods, and relation to the described position;
• The DOL’s ACWIA Higher Education Database, if the position is with an institution of higher education, a related affiliated nonprofit entity, a nonprofit research organization, or a governmental research agency; or
• The DOL’s Occupational Employment Statistics (OES) Survey for all industries.

If the position is covered by a collective bargaining agreement, the prevailing wage is as negotiated between employer and the union. In most cases, the NPWC must determine the prevailing wage on the basis of the arithmetic mean (total of all wages sampled divided by the number of samples) of the wages of workers similarly employed in the geographic area in which the job is located. Unless the employer provides its own survey, the NPWC must derive mean wages from the DOL’s Occupational Employment Statistics (OES) Survey. In December 2004, Congress amended the INA to require the OES Survey to reflect no fewer than four experience levels, and established a formula for deriving two intermediary levels from the two levels OES has published in the past. The employer may provide its own survey to support a prevailing wage application that is based on either the arithmetic mean wage or, if that is not available, on the median wages of workers similarly employed. The median wage is that for which half the sampled wages are higher and half are lower. Employers need not demonstrate that private wage surveys are at least as accurate as the OES. However, in submitting a private survey, the employer must provide the methodology used and confirm that data has been collected within the last 24 months and that the survey meets acceptable standards for sample size, statistical methods, and relation to the described position. If the NPWC rejects an employer survey, it must provide an explanation for its refusal.

DOL also permits – but does not require – employers to continue to use the wages established under the Service Contract Act and the Davis-Bacon Act.

Once issued, the prevailing wage determination is valid for between 90 days and one year, during which time the employer must either begin recruitment or file the labor certification application.

Step Three: Conduct Recruitment

PERM requires that employers conduct recruitment prior to filing a labor certification application. In most cases, the recruitment is conducted without government supervision. Employers must instead follow PERM’s recruitment rules governing advertising, candidate solicitation, and employee notice, and then produce a recruitment report documenting the outcome and the basis for rejecting U.S. applicants. While neither the recruitment report nor any other document will be filed with the certification application, DOL may demand to review the report and other documents if it selects the application for audit.

The recruitment effort is comprised of four elements for professional positions (jobs requiring at least a bachelor’s degree) and three elements for non-professionals:

Recruitment Measures	Professional Positions	Non-Professional
Newspaper advertising	X	X
Job Order placed with State Workforce Agency (SWA)	X	X
Three additional recruitment steps (e.g., job fairs, campus recruiting, employment firms)	X

A. Newspaper Advertising

Advertisements for both professional and non-professional positions must be placed in the newspaper of general circulation in the geographic area of intended employment which is "most appropriate to the occupation and the workers likely to apply for the job opportunity." The choice of a newspaper read by a population segment unlikely to include likely candidates for a job opportunity will count against the employer in the DOL's consideration of the application. Advertisements for professional positions bear the additional burden of appearing in newspapers "most likely to bring responses from able, willing, qualified, and available U.S. workers."

In both professional and nonprofessional cases, the advertisements must be run on two different Sundays which may be consecutive. In rural areas without a Sunday edition, advertisements may be run during the week. Advertising must be placed between 30 and 180 days prior to filing.

The information to be included in the advertisement are precisely described in the PERM rules. Advertisements must state:

• The name of the employer;
• Where to send resumes or report;
• A job description "specific enough to apprise U.S. workers of the job opportunity for which certification is sought"; and
• A description of the geographic area of employment.

In addition, advertisements may not contain:

• A wage rate lower than the prevailing wage;
• Job requirements which exceed those described in the labor certification petition; and
• Wages or terms and conditions that are less favorable than those offered to foreign worker.

B. Recruitment Steps for Professional Positions

Employers recruiting for professional positions must engage in additional recruitment steps. (Professional positions include those for which a bachelor's degree or higher is the usual minimum requirement.) The additional recruitment steps include at least three of the following:

• Recruitment at job fairs;
• Posting on employer’s web site;
• Posting on job search websites other than employer's (posting on newspaper’s web site in conjunction with classified ad would qualify);
• On campus recruiting at colleges and universities;
• Newsletters or trade journals of trade or professional organizations;
• Use of private employment firms;
• Employee referral program;
• Use of campus placement offices;
• Publication in local and ethnic newspapers; and
• Radio/TV advertisements.

C. Candidate Evaluation & the Interview Process

Once all recruitment steps have been completed, the employer evaluates the candidate resumes and interviews those who appear to meet the job’s minimum qualifications. These interviews must be conducted by the employer representative who normally interviews or considers applicants. DOL rules seek to prevent conflicts of interest in the employment interview process by barring either the proposed foreign worker or his agent/attorney from participating in candidate interviews or in the consideration process. The employer’s agent or attorney may participate in the process, provided they normally participate in the hiring process on behalf of the employer for positions such as those which the foreign worker would fill.

Note that if the employer does receive a resume from a candidate who is able, willing, qualified, and available to accept the job opportunity, the recruitment which resulted in that candidate cannot be used to support the Labor Certification.

D. Preparation of the Recruitment Report

Upon completing the selection process, the employer must prepare a recruitment report articulating the recruitment steps undertaken, the results achieved, the number of hires made, and the number of U.S. workers rejected, if any, categorized by the reason for the rejection. Candidate rejection must be on the basis of valid reasons – lack of qualification, ability, availability, or willingness to work. In assessing the validity of the rejection of a U.S. worker, qualification and ability will be measured against the job qualifications established by the employer and whether the employer has applied them improperly.

Moreover, a U.S. worker may not be rejected on the basis of inadequate qualifications if they can develop the necessary skills during a reasonable period of on the job training. However, the employer need not provide on-the-job training to a U.S. worker who fails to meet the employer’s stated minimum requirements to begin with (e.g., education, training or years of experience). Additionally, the employer need not assess whether the prospect's experience can substitute for some or all of the job’s minimum education requirements.

The employer does not file the recruitment report with the labor certification application, but must keep it on file for five years, and produce it in the event of a DOL audit of the application. DOL may also request to see the resumes of rejected U.S. candidates, sorted by the reason for the rejection.

Step Four: Complete and File the Labor Certification Application Electronically

A. Completing the Form

The application form itself is comprised of eight parts:

• Basic information about the employer, its business, and a contact person;
• Attorney/agent contact information;
• Information about the prevailing wage, and the wage offered;
• A description of the job duties, required and alternative qualifications, location, specific skills required, and other job particulars;
• A description of recruitment efforts and whether additional steps required for professional positions were performed;
• Whether the employer provided notice to union representatives and applicable laid off employees;
• Information about the alien worker and his/her education and work experience; and
• The employer’s declaration and certification regarding the conditions of employment.

The employer’s attestation lies at the heart of the labor certification, and it is DOL’s willingness to rely upon the employer’s declarations rather than to perform a substantive documentary review that facilitates labor certification processing. For the same reason, DOL can be expected to deal harshly in the event that an employer is unable to produce adequate evidence supporting the declarations.

By signing the declarations, the employer attests to the fact that:

• The alien’s wage will equal or exceed the prevailing wage;
• The wage offered is guaranteed and payable regularly, and is not based on commissions or bonuses;
• The employer has sufficient funds to pay the offered wage;
• The employer will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States;
• The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
• The employer’s job opportunity is not due to a strike, lock out, or work stoppage;
• The job opportunity’s terms, conditions and occupational environment are consistent with federal, state and local law;
• The job opportunity has been and is clearly open to any U.S. worker;
• Rejection of U.S. workers was on the basis of lawful, job-related reasons;
• The job opportunity is for full-time, permanent employment for an employer other than the alien.

B. Notifying Other Employees of the Filing

Employers must provide notice to their employees of the application before it is filed with DOL. If the position is covered by a collective bargaining agreement, notice to the union representative is sufficient notice to all employees. If, as in most cases, there is no collective bargaining agreement, the employer must post a notice of the recruitment in a conspicuous place for ten consecutive business days, as well as place it on electronic in-house media at a location where employees would likely look for job postings. The posting period must be completed no more than 180 days and no less than 30 days before filing of the labor certification application. In all cases, the contents of the notice must include:

• A statement that the notice is being provided in connection with the labor certification application;
• A statement that any person may submit to DOL evidence bearing on the application; and
• The address of the DOL Certifying Officer.

C. Filing

The application is filed online with DOL’s Office of Foreign Labor Certification. The priority date for the case is the date of electronic filing. Priority dates for electronically filed applications are as of the submission of the on-line form.

Step Five: DOL Processing – Approval or Audit

A. Standard of Review

DOL's certification decision will be based on whether or not the employer has met the statutory requirements for permitting an alien to immigrate for the purpose of employment:

• That there is no U.S. worker able, willing, qualified, and available for the job opportunity; and
• That employment of the alien will not have adverse effect on the wages and working conditions of similarly employed U.S. workers.

Additionally, the CO must determine the job opportunity exists in good faith, that it is open to all U.S. workers, and that the alien did not maintain control or influence over the hiring decision.

The CO will determine that a U.S. worker is able and qualified if either "by education, training, experience, or a combination" the U.S. worker is able to perform "in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed." If the employee does not have the requisite qualifications, the employer cannot reject U.S. workers who can acquire the skills necessary to perform the job duties involved in the occupation "during a reasonable period of on the job training."

The CO will apply the "no adverse effect" standard by reviewing labor market information, special circumstances of the industry, area prevailing wages, and prevailing working conditions, such as required work hours. Because the certification application does not include supporting evidence or documentation, this assessment is based on DOL review of the application and, in some cases, information obtained from its internal data sources.

B. Processing Outcomes

Based on review of the application form, the DOL CO may certify, deny, or conduct an audit of the application. Where there is no audit and the application is deemed grantable, DOL's objective is to provide electronically filed applications a certification decision within 45-60 days of filing, but in practice, DOL usually takes several months to act. If the application is incomplete or DOL concludes that on its face it fails to meet the standard of review, the application may be denied.

In some cases, DOL may decide to conduct a substantive audit of the application, requiring the employer to submit its supporting documents. DOL will also conduct audits of randomly selected applications in order to gauge compliance levels, as well as on applications which trigger pre-determined red flags (which DOL does not disclose).

Applicants receiving an audit letter must produce supporting documentation within thirty days of the letter’s issuance. The requested documents may include the recruitment report, newspaper advertisements, proof of additional recruitment efforts, employee notices, notices to layoffs, documents supporting "business necessity" job requirements, and other materials. The CO may grant one discretionary thirty day extension of time to respond to the audit. The CO may dismiss the application if the employer fails to timely respond. There is no time limit within which the CO must issue a decision on an audited application.

On review of the application and supporting documents, the CO may certify or deny the application, or may order that DOL conduct a supervised recruitment for the position in any case deemed appropriate.

The supervised recruitment is, in effect, the CO's vote of no-confidence in the employer's recruitment efforts to date. The CO may also conclude that an employer, as a result of a succession of audits, must conduct all future recruitments under supervision.

Supervised recruitment procedures include:

• Approval of a recruitment advertisement by the CO;
• Publication of the advertisement in a newspaper of general circulation for three consecutive days, one of which must be a Sunday;
• Publication in the next available edition of a professional journal, if the CO deems it appropriate; and
• Recruitment from such additional sources as the CO may require.

The employer must provide a detailed recruitment report to the CO which identifies the recruitment sources, number of U.S. workers who applied for the position and who were interviewed, resumes and contact information for U.S. worker applicants, and an explanation of the employer’s lawful job-related reasons as to why each U.S. candidate was not hired. The CO must thereafter render a decision certifying or denying the application.

C. Appeal

Employers may appeal certification denials to the Bureau of Alien Labor Certification Appeals (BALCA) which must either affirm the CO's ruling, reverse and order certification, or conduct its own trial-type hearing. The PERM rules do not permit BALCA to remand to the CO for further fact finding. There is no time limit on BALCA consideration of an appeal. Its decisions may be appealed to the federal courts.