The majority of Permanent Resident applications involve three basic stages:
- Labor Certification (known as PERM).
- I-140 Immigrant Visa Petition.
- Adjustment of Status or Consular Process Application.
In certain circumstances the individual may qualify to bypass the first stage and move directly to stage two (if we believe you may be eligible to waive the Labor Certification process we will review other I-140 options). Please also note that individuals can file stages two and three concurrently if the applicant chooses Adjustment of Status, and the individual has a current visa number (meaning – an immigrant visa is immediately available to the foreign national).
As of March 28, 2005 the Department of Labor (“DOL”) started to accept PERM Labor Certifications. Prior to the 28th it was accepting RIR or Traditional Labor Certifications. Such prior filed cases were either approved or denied by Backlog Processing Centers that were closed at the end of 2007.
The purpose of Labor Certification is to document to the DOL’s satisfaction that the employer advertised the foreign national’s position and could not find any qualified U.S. workers (generally U.S. citizens and Permanent Residents), who were willing, able, and available for the position advertised in the location of employment, and at a level of compensation that does not undercut U.S. workers’ wages. If the employer is comfortable that no qualified applicants came forward and can adequately prove this, the Labor Certification will be approved and the individual sponsored can move to stage 2.
Key Elements of a Labor Certification
There are four key steps to finalizing an approvable Labor Certification. They involve:
- Confirming position description which includes clarifying the key duties and true minimum requirements for the position;
- Confirming with the DOL that the wage to be paid does not undercut U.S. wage rates (this involves ensuring the wage to be paid is equal to or exceeds the prevailing wage rate);
- Advertising the position in accordance with DOL directives;
- Reviewing all responses to the ads and confirming that applicants who responded do not possess the required skills, or that if qualified are not interested in the position or lack positive references.
The first step involves reviewing the employer’s true minimum requirements for the position, as job descriptions provided by employers often fail to confirm what is minimally required to do the job. Often the best evidence is the employer’s past practice in hiring for the position. The job description may indicate the need for a Master’s degree and five years of experience, but the employer may have been filling the position with individuals who have a Bachelor’s degree and three years of experience. In such a situation, the true minimum requirements are a Bachelor’s and three years of experience. It is important to ensure an employer can justify both a consistent hiring approach which confirms the minimum requirements and tie these requirements to the employer’s business needs, in order to pass any possible audit hurdles created by DOL (in the past DOL has audited a significant percentage of cases to determine whether an employer’s stated minimum experience requirements are necessary to ensure success in the position).
The second step requires submission of the agreed job description to the DOL for confirmation of the accepted prevailing wage rate. A number of factors combine to assist the DOL in determining the prevailing wage, and in situations where the employer disagrees with the wage rate provided, the employer may submit an alternative wage survey for consideration. This obviously is only a concern if the wage exceeds that offered by the employer. We caution clients to recognize that this is all prospective in nature, meaning that the position and wage offered are intended to be effective as of the approval of the Green Card. If for example total processing is likely to take 2 years then the position offered and wage rate to be paid must be effective on or before the employee’s attainment of permanent status.
Advertising the position requires at least three sources of advertising (the fourth only occurs if consistent with employer policy to use other media to notify all workers of new vacancies), and another three sources should the position be determined to be professional in nature.
- Two Sunday print ads in a paper of general circulation in the area of intended employment most appropriate to the occupation (a professional journal may be used in place of the second Sunday ad when appropriate). Thus a computer engineering position in Palo Alto should be posted in the San Jose Mercury News, and not the Palo Alto Daily given the sheer circulation difference. These ads must name the employer, direct applicants to send resumes to the employer, provide a sufficient description to apprise the applicant of the position, and indicate the geographic location of employment. Should the employer choose to post the wage, it must not be lower than the prevailing wage rate, nor should it contain duties or requirements that exceed those submitted with the application.
- Job Order on the State Workforce Agency job bank for a period of 30 days. This is an online listing and incorporates all content from the final job text. This sometimes requires posting a wage rate.
- Internal Posting of job opportunity for 10 days at employer’s worksite. This is viewed as merely a notification requirement and not really advertising. It involves posting a physical notice on an HR related notices Bulletin Board. Those positions covered by a Union contract require written notification of the Labor certification application be provided to the Union representative in place of the internal posting.
- Optional – Depends on employer practice. Posting of the position in any internal media, should such media typically be used to announce open positions. For example, a company that consistently notifies employees by email of open positions would have to do the same for any PERM related labor certification applications. There is an exception to this rule – should an employer use in-house media for most positions, save and except those for executive positions, the employer can then exempt executive positions from notification.
The DOL requires that these advertising steps be completed prior to 30 days from filing. Thus, if you just finished your last Sunday ad, and the other three requirements are met, you cannot file the case for another 30 days. This is to ensure a cooling off period sufficient for applicants to respond to the last piece of mandatory advertising.
Legally, all of these steps could be completed in a 30-day period, as advertising may be grouped, and the lengthiest part of advertising is the 30-day job order.
Advertising for Professional Positions
In addition to the mandatory requirements, there are other requirements if the position is professional in nature. An employer needs to choose three of these available options.
The ten professional advertising options are:
- Job Fairs – if an employer attends such fairs they must document it by “brochures advertising the fair and newspaper advertisements in which the employer is named as a participant.” Presumably if the employer is not named in a newspaper clipping, the job fair will not qualify as additional advertising.
- Employer’s Website – this is perhaps the easiest and most common additional advertising step. The DOL requires that the employer provide dated copies of the posting on the site.
- Alternative Job Search Website – this can include postings generated from print advertisements. The DOL requires dated copies of the postings.
- On-Campus Recruiting – for employers that visit college campuses, the DOL requires proof of notification issued/posted by the college placement office naming the employer and confirming when interviews were conducted for the occupation.
- Trade or Professional Organizations – employers may advertise vacant positions in newsletters or journals of trade publications. A copy of the posting is required evidence.
- Private Employment Firms – the use of “headhunters” and placement agencies for the position is an available option. The DOL has suggested proof of contracts with the agency and its own postings would be required information.
- Employee Referral Programs – this is another relatively easy option for employers to document. The DOL requests dated proof of notification of the program and it is expected that such notification must occur during the stipulated recruitment period. If the notice of such a program is on the first page of an internet or broadcast in a monthly newsletter, then this policy is well communicated for PERM purposes.
- Campus Placement Offices – separate and apart from On-Campus Recruiting, this involves submitting a posting to the campus placement office, and the proof required is simply proof of submission to the placement office.
- Local and Ethnic Newspapers – in addition to the mandatory print ad requirement, the employer may choose to run an ad in the local paper, or ethnic paper when relevant.
- Radio and Television Advertisements – this is a very costly approach to recruiting and would typically only be used if the advertising were already available. Written confirmation from the station is required in addition to text of the ad.
Of the three required professional ads, two must be completed at least 30 days prior to filing. This means one of these additional ads may be completed just prior to filing in the event you find something wrong with your prior recruitment evidence.
Once the advertising has begun, the employer should be ready to receive and review resumes. The resumes, by law, must be reviewed by a representative of the employer who has authority to do so, typically the hiring manager or hr professional. The attorney is not permitted to perform an initial review of the applications, nor can an outside recruitment company.
When reviewing a resume, the employer will review the individual’s skills and experience against the job description. Should the applicant not possess the requisite skills, be unable to communicate clearly in their resume/cover letter or interview, or not be a U.S. worker, they can be discounted as being ineligible for the position. In those situations were a review of the resume suggests the individual may qualify for the position, the individual’s qualifications should be closely examined to confirm whether they in fact meet the position requirements.
Assuming the employer finds no qualified U.S. workers, the application for Labor Certification may be filed. Should the employer find U.S. workers while having sufficient other vacancies for the applicant to fill, the application may still proceed (as long as this qualified candidate is offered the same position). The ultimate issue is when qualified U.S. workers are located and a job offer is not made. In such a scenario the employer cannot file the application, and must choose to restart the advertising after a cooling off period from the prior advertising – typically a period of six months.
The filing of a PERM Labor Certification may be done either online or by mail. The evidence of recruitment and resumes are not provided at the time of filing. However, these materials are fully discoverable by the DOL in the event of an audit of the filing. Should an audit be called, the DOL will also request a recruitment report. The report will detail how each applicant responding to the advertising was not qualified for the position. The DOL can also request to see copies of all the resumes received in response to the advertising, and copies of all of the ads.
Audits are more likely in the following circumstances:
- The minimum requirements for the position exceed the Standard Occupational Classification (“SOC”) expectations for the position;
- The position requires foreign language skills;
- The application is a request for an “upgrade” of a filed and pending Labor Certification;
- The advertising does not meet PERM requirements;
- Recent company lay-offs;
- The company is closely held, or the DOL suspects Alien influence and control over the process;
- The employee is relying on experience gained while with the employer.
As applications selected for an audit will have only 30 days to respond from the date of an audit letter, or face denial, it is important that we are prepared to respond, should this be necessary.
The time frame for a PERM case is an ever changing dynamic with the audit of a case being the most time-consuming aspect of a case process. Once approved, we will assist with the I-140/AOS process.
As the attorney of record our role in the process is to ensure the employer drafts a job description that accurately reflects the job, while ensuring the sponsored foreign national can provide evidence that he/she qualifies for the position. We also submit the prevailing wage request and provide input on setting the wage or finding external surveys. We advise on the appropriate advertising to place, and when to place it (and we can place ads for you). We complete the application materials, and we advise the employer regarding proper approach to reviewing resumes and as a fail safe we revisit your resume review to ensure no potentially qualified worker is somehow missed. We review the results of recruitment and draft a short synopsis to be used in the event of an audit. We advise on all issues related to the filing of the labor certification and oversee the management of the process. The employer’s commitment involves assisting with drafting the job requirements, placing the advertisements, receiving and reviewing the resumes, and interviewing those applicants who appear qualified for the position.
** This memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **