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Labor Certification

Category:  EB-1  |  EB-2  |  EB-3  |  EB-4  |  EB-5


There are several ways to obtain permanent residency in the US.  Among them are petitions by close family members, residency through political asylum or refugee status, residency for people who can prove their extraordinary abilities in sciences or arts.  One of the popular ways is obtaining permanent residency through an employer.  In short, the employer must prove to the Department of Labor (DOL) and the Immigration Service through a several step application process that the employer can not find a qualified US worker for its open job position.  Labor certification is a necessary preliminary step for the employer to proceed with a permanent resident petition with the USCIS (former INS) for its foreign employee.

A new procedure for labor certification called PERM became effective March 28, 2005. Although the labor certification requirement is derived from one sentence in the Immigration and Nationality Act, the labor certification procedure established by the DOL to implement the requirement is detailed and cumbersome.  For example, newly introduced PERM forms contain over 160 questions in comparison to 37 contained in the old form.  Employers are highly advised to seek help of a professional attorney who is familiar with the requirements and demands of that procedure to successfully maneuver through it and achieve its goal: issuance of a labor certification permitting the employer to proceed with a permanent resident petition with the USCIS to hire the alien.

In spite of its complexity, the big advantage of the new PERM procedure is that it made the process faster, where the applications are approved within 4-6 months.  With introduction of new PERM regulations the LPR status can be obtained in one or two years from filing of the initial labor certification papers.

This article will attempt to present a simplified itemization of the major provisions of the new PERM regulations.

1.  Recruitment

DOL regulationsgoverning the labor certification process require that efforts torecruit qualified resident workers be documented as part of the application process. Prior to March 28, 2005, these efforts were based either on recruitment conducted prior to the filing of the application (reduction in recruitment (RIR) approach) or subsequent to the filing (Standard Approach). However, under the new PERM regulations, the employer is now required to conduct recruitment more than 30 days and less than 180 days prior to filing. 

New regulations contain numerous differences in comparison with the old procedure, however many of them may appear to be too technical and hard to comprehend by a person outside of legal profession not dealing with this process on a daily basis.  In summary these changes affect (i) procedure for determination of prevailing wage, in other words, minimum salary requirements that the employer is required to offer his potential employee, and (ii) requirements to recruitment process and to the ways of advertising the job positions to find qualified US workers for the open job vacancies.

The main changes in the recruitment process are as follows:

A.  The employer is required to place a job order with the State Workforce Agency (SWA).  Apparently this is one of the measures directed to ensure that the offer of employment is in fact open to all qualified US workers and if such workers are available, they are identified and presented to employer for consideration.

B.  Recruitment provisions are divided into professional and non professional occupations.  Professional occupations are usually the ones for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can recruit under the rules that are similar to the ones that existed for all occupations under the old rules. If the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

C.  The recruitment efforts (including at least one newspaper or professional Journal advertisement) must have been conducted in the six month period immediately preceding the filing of the application.  A Sunday edition newspaper advertisement is required.

D.  Under the new rules copies of the actual advertisements should not be submitted with the application. Instead, all pertinent information regarding each advertisement must be provided on the application form, whereas the copies of all documents pertaining to recruitment campaign (including resumes of applicants) must be kept by employer in the event of audit by DOL.

E.  Specific reasons must be given for the rejection of all applicants generated by the prior advertising. This is generally done in a list format in which the names of all applicants and reasons for disqualification are stated. If applicants were interviewed, the results of the interviews should be stated.

F.  Required timeframe provisions include, amongst others:

 

i. that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing for professional occupations;
ii. that filing must be within 18 months after selection for non-professional occupations; and
iii. that notice of filing at employers web-site be provided between 30 and 180 days prior to filing.

G.  Special rules for recruitment are applied for (i) college and university teachers (ii) individuals of exceptional ability in the sciences and arts, (iii) certain physical therapists, (iv) professional nurses and other occupations. 

2.  Filing

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

It is important to note that an employer will not be permitted to submit applications by facsimile and if submitting a Schedule A occupation application, it should be filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

3.  Waiver of the Labor Certification Requirement

Employers may obtain waivers so that they don’t have to fulfill the labor certification requirement. This can only be done if the employer is able to prove that hiring the alien will be "in the national interest," particularly for aliens who are unusually talented or are working in an area of great industrial importance. Employers should consult a qualified immigration attorney before attempting to obtain such a waiver.

4.  What Factors Affect a Labor Certification

The following factors may have an impact on the outcome of a Labor Certification:

  • Current status of the U.S. economy on a national, regional, and local level
  • Shortage or surplus of job candidates within the local area
  • Nature of the job and whether it requires specialized or basic training. For example, a software engineer requires more specialized training than a manager in a fast food chain
  • Employer's business/company size
  • Employer's layoff record within the past year
  • Employer's hiring practices of U.S. workers evidenced by its percentage in relation to its entire workforce
  • Salary offered