Basics about labor Certification

Under the U.S. immigration system, the essential requirement in employment-based immigration is "labor certification". Labor Certification is a document certified by the Department of Labor after an employer complies with certain filing and recruitment requirement proving that the employment of an alien under certain requirement for a specific position for a set of designated job duties will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employers need to prove that the employers, despite completing the required recruitment campaign, could not find a willing and minimally qualified U.S. worker to fill up the applied position.

Labor certification is not required for EB-1, EB-4 and EB-5 immigration application. It can be waived for national interest ground under EB-2. It, however, is mandatory for EB-3.

All Labor Certification Applications must be filed under PERM

Labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications under RIR on Form 750 were no longer accepted, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center . Only if an employer chooses to withdraw an earlier RIR application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed RIR application be processed as a conversion under the PERM regulation.

Length of PERM processing

In the official introduction to the PERM regulations, DOL has set the goal for making decisions on the electronically filed PERM applications at 45-60 days. In the past year, DOL has continuously improved the electronic filing system, which really speed up the processing. Our office has been receiving approved PERM applications with in 7 days to 3 months. The average processing time is about 30 to 45 days. It seems that straightforward cases electronically filed have been processed promptly, but DOL audited cases and procedure troubled cases have experienced significant delays in the processing.

New Requirements under PERM

Under PERM , employers will obtain a Prevailing Wage Determination (PWD) from the applicable State Workforce Agency (SWA) and conduct recruitment for the open position. If no able, qualified, and willing U.S. workers, apply for the position, the employer will complete and submit (online or by mail) a detailed form about the job duties, minimum requirements, wages, recruitment efforts, recruitment results, and so on to one of two DOL PERM processing centers. The DOL processing centers will conduct a quick anti-fraud check (to make sure the employer exists and has employees) and if the application is not selected for audit based on unpublished factors or based on random quality control factors, the DOL will certify the application.

Recruitment Requirements for Jobs

1. Job Order
   For both professional and non-professional jobs, the employer must place a job order for the job opportunity with State SESA for a period of 30 days. Job order is more like a notice about the job opportunity from the employer to the State employment agency. Each state maintains its job banks and data and the opening is such opened to the public for application. The starting and ending dates of the job order must be listed in the ETA 9089.
2. In-House Posting
   Similar to the "regular" and RIR labor certification application, the employer still needs to post within the business premises an in-house notice about the job opportunity. The posting must last for at least 10 consecutive business days, and the notice period must be between 180 and 30 days before filing. The most important to remember about in-house posting is that, unlike other recruitment methods mentioned below, it must contain salary.
3. Sunday Advertisement
   The employer must place recruitment advertisement on two Sundays in a newspaper of general circulation in the area of intended employment. The advertisement must be placed at least 30 days, but not more than 180 days, prior to the filing. Two consecutive Sunday advertisements are allowed.
4. Mandatory Use of Available In-House Media
   Whether it's for professional position or not, the employer must use any and all other available in-house media, electronically or printed, in accordance with normal procedures used by the employer for similar positions in the business. The key to this requirement is "normal procedure". Therefore, if the employer ordinarily posts job opportunity in the company's website, it is then mandatory to post on it for the applied-for position. If the employer does not normally use any other in-house media, the employer does not need to create one.

Three Additional Recruitment Steps for Professional Jobs

For professional jobs, on top of the recruitment methods listed above, the employer needs to carry out at least three additional recruitment steps from the following 10 allowed methods:

1. Job fairs
2. Employer's web site
3. Job search site other than employer's
4. On-campus recruiting
5. Trade or professional organization
6. Private employment firms
7. Employee referral program, if it includes identifiable incentives
8. A notice of the job opening at a campus placement office, if the job requires a degree but no experience
9. Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
10. Radio and TV advertisement

Only one of the additional recruitment steps may take place within 30 days of filing. Dates and methods of each step must be listed in the filing

Prevailing Wage Issues

The new regulations have many new provisions about prevailing wage requirement for the application, including:

1. Mandatory Determination before Filing
   One new provision under PERM is that each application must contain a prevailing wage determination made by the SESA of the state where the job is located. The wage determination is to be made by each state with forms they designate. There is not a centralized format for the wage request.
2. Match with Prevailing Wage 100%
   Once the prevailing wage is determined, the PERM regulations require employer to match the prevailing wage at least 100%. In other words, the actual wage to be paid for this position cannot be lower than the prevailing wage. The 5% adjustment room from the prevailing wage is no longer allowed.
3. 4-Level Wage System
   One frequently criticized wage issue under the current system is that the prevailing wage determined by SESA is customarily too high because the OES provides only two-level wage determination. Hence, a non-entry and non-senior level position is frequently the victim of the system and is frequently determined by the SESA to require high level of salary. The PERM regulations mandates that, to ease this problem, the OES must provide 4 levels of wages corresponding to the experience and education requirement of the position, and the level of supervision. The additional two levels are to be created between the current level one and two. However, how the education and experience is to be divided for the purpose of determining wage is remained to be seen.
4. What Are Included in the Wage?
   A frequently asked question is what are to be included in the wage offered by employer for the purpose of determining whether the actual wage matches with the prevailing wage. The rule of thumb is that if the payment is guaranteed by the employer and is not discretionary, it is counted. The payment guaranty may be from employment agreement or by law. What about commissions, bonus, or other incentives? The employer still needs to guarantee a wage that is no less than the prevailing wage. In other words, if those payments are not guaranteed, it does not count.
5. When the Prevailing Wage must be paid
   To sum it up, after the alien is granted permanent residency, i.e. after I-485 is granted. With the current speed of processing, it should be safe to say about 2 ~ 2 1/2 years from the day the employer starts recruitment activities.
6. How Long the Determined Wage is Valid
   The wage determined by the State is good for 365 days. If it is older that one year, the petitioner must obtain a new one from SESA.

Conversation of RIR to PERM and Refiling

Many employers have already filed their cases under regular processing or RIR and are eagerly waiting for result. However, the creation of Backlog Reduction Center by the DOL have not eased any worry of the employers and the aliens as no answer is given as to how soon their cases will be processed. PERM regulations allow employers to withdraw pending cases and re-file the same under PERM as far as a job order has not been placed by SESA for the old cases. If the refiling is for "identical job opportunity" as the old petition and is filed within 210 days after withdrawal, the case retains the priority date assigned to the previous petition. This is significant because many aliens need to preserve the priority date to retain the benefit of the now repealed Section 245(i), and for H-1Bs to retain the chance to file 1-year extension after the expiration of 6-year in H-1B. However the PERM filed to convert the previously file RIR labor certification has to be identical in every aspect concerning the employer, job duties and requirement except for the employer's address and telephone number.

The standards used in making labor certification determinations under the new system will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.

Provisions changed under the New System

The following is a summary of changes in the particular topic areas.

• Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center .
• Filing: Supporting documentation is not submitted with the application.
• Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).
• Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.
• Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.
• Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.
• Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.
• Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.
• Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.
• Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.
• Recruitment: Sunday edition newspaper advertisements are required.
• Recruitment: A job order, obtained through the SWA, is required.
• Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5.