Labor Certification
Labor Certification Processing Under PERM
The regulation implementing the new Program Electronic Review Management System (PERM), governing labor certification applications was published in the Federal Register on December 27, 2004. PERM went into effect on March 28, 2005. 69 Fed. Reg. 77326-421 (Dec 27, 2004)
Labor Certification
Labor certification is the first step in the green card process whereby an employer sponsors a foreign worker for legal permanent residence (Green Card) in the United States. The application for foreign labor certification is filed with the U.S. Department of Labor. The employer must show that it has a job opening, that it is able to continuously pay the offered wage from the time the application is filed to the issuance of the green card, that there are no able, willing, qualified and available U.S. workers, that it has engaged in good faith recruitment efforts to find such U.S. workers, and that the foreign worker qualifies for the job opening. The filing or approval of the labor certification application does not grant the foreign worker any legal status or any authority to work for the employer. The approval of the application merely allows the employer to file a petition for an alien worker visa on behalf of the alien in the green card process.
PERM
PERM is the long awaited regulation that we must follow in the filing of labor certification applications. Basic labor certification law is still the same. It is the processing of the applications that has changed. The major changes are outlined below.
PERM Processing Time
According to the Supplemental Information in PERM, “an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed.” Lately, it has taken longer than the anticipated 45 to 60 days. Although the U.S. Department of Labor (DOL) has stressed its preference for e-filing, it will accept paper applications, but no faxes.
Changes Made by PERM
The most pertinent PERM processing changes to the labor certification process are as follows:
- Applications are filed on-line.
- The employer must agree to pay at least 100% of the prevailing wage as determined by the state agency. The employer cannot pay less, but of course, can pay more.
- There will be four levels of prevailing wage.
- Employer must provide its EIN number and prove that it is a bona fide business entity with employees on its payroll.
Recruitment
Recruitment must commence no more than 180 days and be completed at least 30 days before filing the application.
- A job notice must be posted at the employer’s place of business for ten business days.
- The job must be posted on the state job board for thirty (30) days.
- The job must be advertised in the newspaper on two (2) Sundays.
If it is a professional job, three (3) additional kinds of recruitment are required. These can include the following:
- job fairs,
- employer’s web site,
- job search web site other than the employer’s,
- on-campus recruiting,
- trade or professional organizations,
- private employment firms,
- employee referral program with incentives,
- campus placement offices,
- local and ethnic newspapers, and
- radio and television advertisements.
Recordkeeping/Recruitment Report
The employer must prepare a recruitment report describing its recruitment activities and the results of recruitment. The employer must also keep copies of all resumes submitted in response to the recruitment, its correspondence with applicants, and copies of all recruitment activities for five (5) years. DOL can select applications for an audit based on criteria it deems to be a problem, or based on a random audit.
In case of an audit, the employer must submit requested documentation to DOL within 30 days. If DOL finds that there are problems with the application, the recruitment process, or its supporting documents, it can for the next two (2) years require the employer to conduct DOL supervised recruitment in future filings of labor certification applications on behalf of other employees.
Supervised Recruitment
Supervised recruitment will only arise in the event of an audit.
Fraud Rule: Attorney Fees and Costs; Substitution; 180 Day Validity
Effective July 16, 2007, the DOL requires employers to pay the cost of preparing, filing and obtaining labor certification. An employer’s transfer to the alien/employee of the employer’s costs incurred in the labor certification application process is strictly prohibited. If the attorney represents both the employer and the employee, the employer must pay the entire attorney fee. However, the alien/employee may retain and pay for his own separate attorney.
The employer is not required to pay the attorney fees and costs for the USCIS petition for alien worker or the application for adjustment of status or consular processing (green card). Either the employer or the alien can pay for the fees and costs associated with these petitions/applications.
The DOL rule prohibits substituting aliens on permanent labor certification applications and certifications as previously permitted.
The DOL rule also provides for a 180 day validity period for labor certifications. This means that the petition for alien worker must be filed at USCIS within 180 days of the approval of the labor certification application.
The above is a very brief summary of PERM. To read it in its entirety, you can find it at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Final_Rule_12-27-04_FR.pdf.
The fraud rule is at http://www.foreignlaborcert.doleta.gov/pdf/fraudRule.pdf.
Should you have any questions, please do not hesitate to contact us.