Labor Certification - PERM

 

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Qualifying

·         Applications filed on or after March 28, 2005, must comply with the new PERM process and adhere to the new PERM Regulation

·         There must be a bona fide, full-time permanent job opening available to U.S. workers.

·      Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker's qualifications. In addition, the employer shall document that the job opportunity is described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.

·         The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process

The employer must complete an Application for Permanent Employment Certification, ETA Form 9089. A completed application will describe in detail the job duties, educational requirements, training, experience, and other special skills the employee must possess to perform the work, and outline the foreign worker's qualifications.

Applications submitted by mail must contain the original signature of the employer, foreign worker, and preparer, if applicable, when they are received by the NPC. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, foreign worker, and preparer, if applicable, in order to be valid.

Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the National Prevailing Wage Center (NPWC).

All employers filing the ETA Form 9089 (except for those applications involving Schedule A occupations and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application. The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of U.S. applicants and provides the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity; however, if requested by the Certifying Officer, the employer must submit the resumes.

Supporting documentation may not be filed with the ETA Form 9089, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

The employer is required to retain copies of applications for permanent employment certification and all supporting documentation for five years from the date of filing the ETA Form 9089.

The employer has the option of filing an application electronically or by mail. However, DOL strongly recommends that employers file electronically. Not only is electronic filing faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed.

USCIS Petitions

Within 180 days of the date an application is certified, the employer must file an Immigrant Petition for an Alien Worker, Form I-140, with the USCIS. The employer must attach the certified ETA Form 9089 to the completed USCIS Form I-140, along with other USCIS specified documentation and applicable fees, and submit the package to the appropriate USCIS Service Center.

Schedule “A” Occupations

Schedule A is comprised of certain occupations, as set forth at 20 CFR 656.15, for which DOL has determined there are not sufficient U.S. workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of U.S. workers similarly employed. The occupations listed under Schedule A include physical therapists, registered nurses, and certain aliens of exceptional ability in the sciences or arts.