Memo - Clover Sites



Memo

To: Employers who file permanent labor certification cases on behalf of foreign-born workers

From: Irani & Wise, PLC

Subject: PERM labor certification processing

For most foreign-born employees seeking permanent resident or (green card( status through the sponsorship of their employers, labor certification is the first step in that process. Before a U.S. company may hire a non-U.S. worker for a full-time, permanent position, it must certify to the U.S. Department of Labor (DOL) that it was unable to find an available, willing, and similarly qualified U.S. worker (citizen or permanent resident) for the position in question, and that the employment of a foreign worker will have no adverse impact on U.S. workers. The recruitment of U.S. workers, resulting filing with the DOL, and retention of certain documentation in the event of DOL audit constitute the labor certification process. After this process is successfully completed, the employer may then file a petition with the Citizenship and Immigration Services (CIS, formerly INS), but in many ways, the labor certification process is the most vital element of a standard employment-based permanent residency filing.

For many years, the labor certification process has been a lengthy one, taking up to two or more years in some states and making the road to an employment-sponsored (green card( a long one. As the process slowed and became more inconsistent from region to region, changes were proposed to the system. On December 27, 2004, the DOL published a final rule ((PERM() permanently amending the labor certification process. All applications for labor certification filed March 28, 2005 or after must be filed under PERM.

STEP ONE: DETERMINING MINIMUM REQUIREMENTS FOR THE JOB

Before filing an application for labor certification (ALC), it is necessary to determine the minimum requirements for the position offered. Keep in mind that, because these are minimum requirements, they may not reflect the exact qualifications of the alien worker in question (i.e., his or her qualifications may in fact exceed the minimum requirements for the job). These minimum requirements will become the basis for recruitment for the position and, ultimately, the basis for rejection of unqualified U.S. workers. Therefore, although it may be advantageous to the foreign worker to reflect substantial job requirements, the requirements may not be specifically tailored to one person(s qualifications. There are several considerations that the government uses in contemplating the reasonableness of the minimum requirements stated:

* Standard Vocational Preparation. The government has guidelines it has set forth for various jobs in terms of necessary training, experience, and education. If the employer exceeds these guidelines, it must present a (business necessity( justification for doing so. For example, if the SVP dictates that five years of preparation are standard, we can require a bachelor(s degree plus one year of experience (five years of total preparation), but we could not request five years of experience in addition to a bachelor(s degree (nine years total).

* Foreign language requirements, with some limited exceptions, are generally considered inappropriate.

* If there is an experience requirement, experience gained with the same employer (or as a contract employee to the employer) can only be used where the experience was in a job which was not substantially comparable (i.e. a position requiring performance of the same job duties more than 50% of the time) to the job applied for. Experience gained with a related company (with a different FEIN) is okay. The experience requirement cannot have been met through employer-paid education or training.

* Where skills are required, the employer cannot discount U.S. workers who don(t have that skill if the skill could be taught with a reasonable amount of on-the-job training.

* Where a combination of positions is applied for (e.g., Mechanical/Electrical Engineer), the employer must show that it normally employs such individuals, that it is customary in the industry, or that it is a business necessity.

* Where the employer will allow experience gained in a different job than the one offered, it must be willing to consider all applicants with a suitable combination of education, training, or experience.

STEP TWO: PREVAILING WAGE DETERMINATION

The DOL requires a prevailing wage determination to assure that the wages of U.S. workers will not be adversely impacted by the employment of alien workers. Under PERM, employers are required to offer the alien 100% of the prevailing wage (before PERM, employers needed to pay only 95% of that wage). PERM also introduces a four-tier wage system, replacing the pre-PERM two-tier system. The four tiers should consider the education requirements, experience requirements, and supervisory duties of the position. Bonuses and other incentives can only be included in the foreign worker(s salary if they are guaranteed and paid on a weekly, bi-weekly, or monthly basis.

Prior to recruitment, our office will obtain a prevailing wage determination for the position to ensure that the wage being offered or paid is sufficient. If the wage falls short and the employer disagrees with the determination, it may provide supplemental information, file for a new determination, or appeal the determination. Alternate wage surveys can also be used if they meet certain criteria set forth by the DOL.

Be advised that the employer does not have to pay the wage stated on the Application for Alien Employment Certification until after the alien has become a permanent resident and is therefore able to accept permanent employment, which, in most cases, does not occur for approximately two or more years after the filing of the application.

STEP THREE: RECRUITMENT

Recruitment consists of various steps designed both to test the U.S. job market for available and qualified employees, and to inform the company(s other workers and bargaining representatives of the filing. Recruitment steps include posting an internal notice within the company, using all other in-house media in accordance with normal procedures used for recruitment for similar positions within the organization, the placement of a job order with a State Workforce Agency, and the placement of two Sunday newspaper advertisements (or one newspaper ad and one professional journal ad in certain circumstances).

For professional positions (listed on an attachment to the PERM rule and defined as a position for which a bachelor(s degree or higher is the usual requirement), three additional forms of recruitment must be undertaken. The list of permitted additional recruitment steps include: job fairs, posting on employer(s web site, posting on another job search web site (e.g., ), on-campus recruiting, trade or professional organizations, private employment firms, employee referral programs (if they include identifiable incentives), a notice of the job opening at a campus placement office (if the job carries a degree requirement, but does not require experience), local and ethnic newspapers (if such is appropriate for the job opportunity), and radio and television advertisements. The timing of these steps is dictated by the regulation, and we will assist you to make sure that things happen in a timely manner and in the correct order.

There are slightly differing requirements for certain positions such as live-in domestic help, nurses, physical therapists, and college/university teachers. We will deal with those specific requirements on an individual basis as a case dictates.

Note regarding layoffs: If the company has had lay-offs in the six month period preceding the filing of the application, it must document that it offered the position to those laid-off workers who were able, willing, and qualified for the job, and document the results of their consideration of such workers.

STEP FOUR: FILING OF APPLICATION

After the recruitment period, we will prepare Form ETA 9089 application for labor certification and submit that electronically. After the form is certified, we will send it to the employer for signature and the employer will return it to us.

The application will either be approved or denied(there will be no opportunity to respond to DOL concerns prior to a denial. A request for a review of a denial may be made to the Board of Alien Labor Certification Appeals (BALCA) by the employer. If no request for review is made, a new application may be filed at any time. If a review is requested, a new application may not be filed until the review procedures are complete.

Additionally, a previously approved application for labor certification may later be revoked if there is a finding of fraud or misrepresentation of a material fact. It should also be noted that as part of the process of reviewing the application, the DOL will check on the existence and bona fide nature of the employer and whether the employer has employees on payroll via available public databases.

STEP 5: MAINTAINING PROPER RECORDS AND POTENTIAL AUDIT

We will prepare a recruitment report and provide the company with a list of documents that must be maintained for five years after the filing of Form ETA 9089, as well as those documents on the list which are in our possession at that time. It is important to maintain these documents and the recruitment report for a full five years. The DOL PERM Processing Center Certifying Officer can request an audit of any permanent labor certification either for cause or randomly. When an employer receives an audit letter, they will have only 30 days to produce the requested documentation. The employer may also be required to conduct supervised recruitment for any future labor certification filings for up to two years.

We look forward to helping you navigate this challenging process and will remain available to answer any questions you may have.

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