In most employment based EB-2 and EB-3 immigration cases, employers sponsoring individuals for permanent residence must obtain a certified “labor certification” from the U.S. Department of Labor (DOL), which establishes that the foreign national’s job will not displace a qualified, able and willing U.S. workers, nor adversely affect wages and working conditions at the employment location.
To convince DOL that no U.S. worker could be found, the employer must conduct a strict, highly regulated recruitment process to test the U.S. labor market for the foreign national’s position.
The labor certification process is called the PERM process, which stands for Program Electronic Review Management.2 (Many immigrations lawyers use “PERM” and labor certification synonymously.)
[PLEASE NOTE: the following description of the labor certification process, like any legal rules and laws, is subject to change. Do not begin the labor certification process without speaking to an experienced immigration lawyer, who can verify the current legal rules and process.]
What the Labor Certification Process Looks Like
The labor certification process is a recruitment process that is regulated by the DOL. The employer is required to make a good faith effort to locate a qualified U.S. worker for the job currently (or to be) occupied by the foreign national employee. DOL has broad discretion in evaluating labor certification applications, and the employer’s failure to follow any of the required steps can result in the denial of the application. DOL will not approve a labor certification if it determines that a qualified U.S. worker (one who meets the minimum requirements for the position as set forth by the employer) was rejected for the position.
The process begins with the employer defining the job position to be certified, the location of the job and the minimum requirements for that position. The DOL will scrutinize any requirements for the job that seem overly restrictive or tailored to match the qualifications of the foreign national. For example, the DOL will closely examine foreign language requirements and other requirements that are outside the norm. Some seemingly overly restrictive requirements can be sustained through a “business necessity” argument. The employer should be prepared to explain and document this business necessity.
Because the employer hopes that the foreign national will be allowed to permanently fill the position, the foreign national must of course prove that they meet the educational and minimum skill requirements for the position. Generally, the foreign national cannot use any experience gained with the employer filing the application in order to meet those minimum requirements. There is a narrow exception to this rule, where an employee can use experience gained at the sponsoring employer if they gained the experience in a previous job position that is not “substantially comparable” to the position for the labor certification.
The salary offered to the foreign national must be at least the amount of the DOL’s prevailing wage for the position and no less than the actual wage for the position. To establish the prevailing wage, the job description and requirements are sent to the National Prevailing Wage Center, a division of the DOL, and they determine the official prevailing wage for the position.
The Prevailing Wage Determination
Prevailing wages are calculated on four levels, with Level 1 as entry level and Level 4 as requiring the most experience. The wage inserted in the labor certification application must be paid at the time residency is granted; however, if the employee is currently on a H-1b visa and occupies the same position, the employer may be required to pay the prevailing wage much sooner. The employer must be prepared to document that it has the ability to pay that salary to the employee at the time of the Labor Certification filing and until residency is granted. This can be done through tax returns, audited financial statements, or annual reports. Employers with 100 or more employees may submit a statement from the company’s financial officer in lieu of the other financial documentation. Here is more info about the ability to pay requirement.
The Recruitment Process
All recruitment occurs before filing the labor certification, since if the employer finds a qualified U.S. worker, they will never even file the application.
The first step is that an internal job posting must be placed in a conspicuous location at the jobsite for at least ten (10) consecutive business days. That posting should literally track the job duties and requirements from the labor certification form ETA 9089. Second, the job must be placed in the state job bank for thirty (30) consecutive days and two Sunday newspaper advertisements are required in a newspaper of general circulation. These recruiting steps must occur at least thirty (30) days but not more than one hundred eighty (180) before the filing of the application. The newspaper advertisements must contain the name of the employer, where direct applicants should to report to or send their resume, provide a job description specific enough to apprise U.S. workers of the job opportunity and indicate the location of the job clearly enough to demonstrate the relative commuting distance. The advertisements do not need to include the salary and, if preferred, a wage range can be used as long as the bottom of the range is not lower than the prevailing wage.
For “professional” jobs, i.e. where a position requires a college or higher degree, the same recruitment requirements apply although an advertisement in an appropriate professional journal may be substituted for the second newspaper advertisement. In addition, at least three (3) of the following ten (10) recruitment methods must be satisfied:
- Employer’s internet site.
- Job Fair
- Job search websites.
- Private employment agencies.
- On-Campus recruitment (only for entry level jobs).
- Trade or profession organization.
- Employee referral program.
- Campus placement office postings (only for entry level positions).
- Local and ethnic newspapers where appropriate.
- Radio and television advertisements.
The employer must carefully consider all applications that it receives, whether from inside or outside the company. The employee MAY NOT be involved in the actual recruiting process, nor may s/he counsel. The employer should interview, at least by telephone, any seemingly qualified applicants and thoroughly document each interview (date, qualifications, etc.). At the conclusion of the recruitment period, the employer must prepare a report describing all of its recruitment efforts and its reasons for not hiring each applicant.
After the labor certification is filed, the DOL will review the application and approve, deny or issue an audit of the labor certification. If approved, the I-140 can then be filed with the Department of Homeland Security. If the DOL denies the application, it can be appealed, re-filed, or reconsideration can be sought. The DOL may also request additional information/documentation or they may require supervised recruitment.
Labor Certifications are truly one of the most challenging immigration steps in the immigration law world. It is imperative to work with a skilled, experienced attorney to successfully navigate this process. If you have questions about the labor certification process, give us a call at (303) 872-6985.
Photo Credit: G. Crescoli