Labor Certification as an Avenue to Permanent Residency

Apart from a few select individuals who may benefit from either a national interest waiver
or first preference visa petition, most individuals applying for permanent residency based
on their employment must first receive an approved labor certification filed on their behalf
by their employers. Employers may sponsor their employees for permanent residency by establishing that there is a shortage of qualified workers to fill the position. If the employer
locates a qualified applicant, the employer must either hire this individual and continue with
the labor certification process for the foreign national, or cease recruitment and may not file
the labor certification, as it is unable to demonstrate a “shortage” of workers for this position. 
In the past, employers had two options for filing labor certifications. They could file a job order
with the state employment agency and undergo state-supervised recruitment, or conduct recruitment and file the labor certification with proof of a pattern of recruitment that did not
produce any willing and minimally qualified American workers to perform the position (known
as reduction in recruitment, or RIR). Either option resulted in a waiting period of years for
employers to receive the approved labor certification on behalf of their employees.

On December 27, 2004, the Department of Labor issued its long-awaited Program
Electronic Review Management (PERM) which took effect on March 28, 2005. PERM
establishes new procedures and revised standards for permanent labor certification. Most
notably, employers may file PERM labor certifications electronically, or via mail, and most
applications will be certified within 45 to 60 days unless selected for an audit. As before,
the employers must conduct a test of the labor market to prove there are no minimally
qualified workers for the position. In certain circumstances, employers must produce
documentation in response to a request from the DOL for an audit.

  • Prevailing Wage

An employer must submit a prevailing wage determination to the state workforce agency to
verify that the wage offered to the foreign national for the position in question is at least
100% of the prevailing wage for that position in that locality before filing the labor certification.
The state workforce agency will use the government’s Occupational Employment Statistics
(OES) survey to establish the prevailing wage for the occupation unless the employer
furnishes an employer conducted survey or independent survey that meets certain
eligibility criteria.

  • Requirements for the Position

In the real world, employers want to hire the most qualified individual for the position based
on subjective and objective criteria. Unfortunately, that is not permissible when an employer
is recruiting for labor certification purposes. Instead, the employer must demonstrate that the
objective requirements for the position are necessary for an individual to minimally perform 
in the position and that the employer has not, and would not hire workers with less training or experience for a substantially comparable position. Furthermore, the requirements, unless adequately documented as arising from business necessity, must be those normally required
for the position, as demonstrated by the Department of Labor’s O*Net job zones. Lastly, the requirements must not exceed the training and education that the foreign national possessed before hire by the employer, except in very limited circumstances.

  • Recruitment

The employer must conduct recruitment over a period ranging from 60 to 180 days to
determine if there are any available, minimally qualified workers to perform the position 
in that location. There are four steps that each employer must take when filing a labor
certification for a professional position:

  1. The employer must place a 30-day job order with the state workforce agency
for the geographic area of intended employment;
  2. The employer must place two print ads in a paper of general circulation for the
area on two different Sundays;
  3. The employer must furnish a job notice to the collective bargaining representative,
or if no such bargaining representative exists, the employer must post a job notice
for 10 consecutive business days, clearly visable in a conspicuous place; and
  4. The employer must also publish the job notice in all in-house media, whether
electronic or printed, using the employer’s normal procedure for similar positions.

These mandatory steps for basic labor certification applications must be conducted
between 30 and 180 days before filing. The state job-order must run for a thirty day period,
and therefore, the employer must place this order at least 60 days before filing the PERM

Additionally, for professional positions using the basic labor certification process,
employers must conduct three of the following ten additional recruitment steps:

  1. Participation in job fairs
  2. Advertising on employer’s websiteAdvertising on other job search web sites
  3. Participation in on-campus recruiting
  4. Advertising in trade or professional organizations newsletters
  5. Use of campus placement offices
  6. Use of private employment firms
  7. Implementation of an employee referral program with incentives
  8. Advertising in local and ethnic newspapers
  9. Television or radio advertising
  10. The employer must conduct two of the three optional steps above between 30 and
180 days before filing the application. The employer may conduct one recruitment
step within 30 days of filing the application.
  • The Application Process

The employer may submit the Form ETA 9089 electronically or via mail. Electronic
submissions are signed by the employer and foreign national once certified, but LMH
requires clients to sign the form before submission to ensure the accuracy and truthfulness
of all statements. Although employers must register themselves for the PERM program, LMH may submit the application on behalf of the employer. Once DOL receives the
application, it completes a preliminary review of the application, including cross-checking information with commercial databases, and possibly contacting the employer to confirm
its intention to sponsor the foreign national. After preliminary processing, the application
is screened, and then will be certified, denied or selected for an audit. Processing times
for non-audited cases range from 45 to 60 days from filing.

  • Retention of Documents

Although the Form ETA 9089 represents the complete application, employers must retain
the labor certification and all supporting documents for five years, regardless of whether
the Department of Labor requests an audit. The supporting documentation must include:

  • A detailed recruitment report describing the recruitment steps undertaken and
the results achieved, the number of hires, and if applicable, the number of US
workers rejected, categorized by the lawful job related reasons for such rejections;
  • Resumes sorted by the reasons the individuals were rejected for the position

Employers who receive a large amount of unsolicited applications should post job
opportunities with codes in order to easily identify which applicants were interested in the
position in question. Additionally, it is important to note that employers may not reject US
workers for the position, even if they do not have the required experience if they would be
capable of acquiring the necessary skills during a reasonable period of on-the-job training.
The determination of “reasonable” varies according to the occupation, industry and job

Further, if DOL considers any requirements “excessive” according to the O*Net job zone,
it will require a description of the business necessity for such requirements. As the O*Net
job zones encompass many occupations within one job classification, many requirements
may meet the definition of “excessive.” Therefore, LMH recommends including in the
recruitment report, a detailed explanation of why any requirement or special skill is
necessary to the occupation in the context of the employer’s business and is essential
to performing the job in a reasonable manner.

Lastly, there are different procedures and requirements for the specific occupations
listed below:

  • College and university teachers (including primary and secondary school
teachers in Alaska)
  • Physical therapists, nurses, certain individuals of exceptional ability in the
sciences or arts
  • Live-in domestic workers
  • Sheepherders

The documentary compliance rules for these occupations differ from those described
above for the general labor certification process for professional positions.

  • Audits

DOL will enforce compliance with the PERM rules through an audit system. Some
applications are audited based on the responses to questions on the ETA Form 9089
while an estimated 20 percent of applications are chosen for a random audit. Employers
must respond to the audit request within 30 days or the application will be denied. In limited circumstances, employers may request a 30-day extension to respond. After the employer
submits evidence in response to the audit, DOL can approve the application, request more information, or request supervised recruitment.

Employers may be forced to undergo supervised recruitment in response to an audit,
or the DOL may order supervised recruitment for all future applications for up to two
years when there is a “substantial failure” by the employer to provide documentation in
response to an audit. Supervised recruitment is onerous for the employer and will result
in longer processing times for labor certifications. Therefore, the imposition of supervised recruitment on all labor certifications filed for two years will severely handicap employers
wishing to sponsor labor certifications on behalf of their foreign nationals. Employers
should thus be careful to fully document all recruitment efforts and comply with the
PERM rules so they are able to successfully respond to an audit request.

  • Approval of Labor Certification

Once the labor certification has been approved, the employer must file a Form I-140 for the
foreign national based on the approved labor certification. If the labor certification qualifies
the foreign national for a current visa category, the individual may also concurrently file an
adjustment of status application and an application for a corresponding employment
authorization document and advanced parole document.

Copyright © 2009 Law Offices of Melissa Harms All rights reserved.

The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an
attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their
situation and to receive appropriate legal advice.