A labor certification is a process whereby an employer tests the labor market to determine whether a United States worker is qualified, willing and able to perform the job the employer wishes to offer a foreign worker. This test of the labor market is required for positions that would fall under the employment based third preference classification (skilled, professional or other workers) and the second preference classification for members of a profession requiring an advanced degree.
Once the labor certification application is approved by the United States Department of Labor (DOL), the employer may then submit an I-140 Immigrant Petition on behalf of the foreign worker. For many foreign workers, the labor certification is the first step on the road to attaining a green card.
Qualifying Criteria
On March 28, 2005, the DOL implemented a new labor certification process called PERM. In order to file a labor certification under this new procedure, the following criteria must be met:
- The employer must hire the foreign worker as a full-time employee.
- There must be a bona fide 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. The employer must also document that the job opportunity has been and is being 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.
Before submitting the PERM application (ETA Form 9089), the employer must engage in prefiling recruitment and obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed are of intended employment. The employer may submit the ETA Form 9089 online, and must retain all supporting documentation (e.g., proof of ad placement, results of recruitment, posting of notice of job opportunity).
Prefiling Recruitment
If the position involved requires at least a Bachelor’s degree, there are six recruitment steps the employer must take before submitting the ETA Form 9089 with the DOL. All recruitments steps must be completed within 180 days before the filing of the PERM application. Please note that PERM applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders need not follow the recruitment steps outlined below.
There are 3 mandatory steps:
- Placing a job order with the SWA for a period of 30 days
- Placing an advertisement on 2 different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation
- Job fairs
- Posting on employer’s web site
- Job search web site other than the employer’s
- On-campus recruitment
- Use of trade or professional organization
- Use of private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television advertisements
Recruitment Report and Record Retention
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.
The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089.
If you would like to discuss labor certification and develop a strategy for obtaining a green card, please contact us.
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