Frequently Asked Questions for Labor Certification/PERM Process

Frequently Asked Questions for Labor Certification/PERM Process
PERM Overview; Legal Fees of PERM; PERM FAQs
What is a labor certification?
Non-residents who have a permanent U.S. job offer, and who are not qualified to be exempt from labor certification, have to acquire Alien Employment Certification, also known as labor certification from the U.S. Department of Labor (DOL). A permanent labor certification issued by DOL allows an employer to hire a non-resident to work permanently in the U.S.
Who needs a labor certification?
In most EB-2 and EB-3 cases, the employer must obtain “labor certification” from the DOL for the non-resident.
What is the filing date and what does it mean?
The date the DOL receives the labor certification application is known as the filing date and is used by the DOS and USCIS as the priority date for I-485 filing.
What standards are used in making labor certification determinations?
When certifications are issued, the DOL uses three fundamental principles to dismiss non-residents:
U.S. employees are qualified, available, willing, and able for the job and/or
Hiring a non-resident will negatively affect the working conditions or wages of U.S. employees similarly hired; and
The employer has met the procedural requirements of the guidelines.
Who are “lawful U.S. workers”?
“Lawful U.S. employees” include asylees, refugees, permanent residents, and U.S. citizens.
What is PERM?
The DOL (U.S. Department of Labor) published definitive regulations in 2004 that created a new labor certification procedure, termed “Program Electronic Review Management” (PERM). PERM was enacted on March 28, 2005, with the intent to assist with quicker decisions. More rules were created by PERM to protect U.S. employees.
What form should be filed under PERM?
Employers applying after March 28, 2005 for a labor certification must file Form 9089 under the new PERM regulations.
What should be included in ETA Form 9089?
A completed application will describe in detail the educational requirements, experience, job duties, training, and other special skills the employee must have to perform the job, and describe the non-resident’s qualifications. Additionally, the employer is required to include the following NPWC information on the ETA Form 9089: the prevailing wage and tracking number, the skill level, the determination date, the SOC code, the wage source, the occupation title, the wage source, and the expiration date.
Any restrictions on offered wage?
The answer is yes. The offered wage must be equal to or greater than 100% of the prevailing wage. No alternative is acceptable.
Can the determination of prevailing wage by a certifying officer in State Workforce Agency be reviewed?
The answer is yes. A request to evaluate the determination must be filed within 30 days of the determination.
How should an employer set requirements for a job position in ETA Form 9089 filing under PERM?
The minimum employer requirements must be common to the occupation and not more than the applicant held when hired for the job. The requirements cannot be modified to the non-resident’s specific qualifications and skills.
Can an employer set job requirements which are not customarily required for the occupation in the U.S.?
The answer is yes. But the employer must document the requirements as being a business necessity.
How long should supporting documents be retained?
An employer should maintain any supporting documents for five years.
When must the application be signed?
Applications submitted by regular mail must include the original signature of the non-resident, the employer, and the preparer, if applicable, when it is received by the NPC. Electronically filed applications must be signed immediately by the non-resident, employer, and preparer (if applicable) upon receipt by ETA in order to be legal.
What is the procedure to file electronically under PERM system?
Employers must register through the PERM online system.
Prior to filing ETA Form 9089, the employer should ask for a prevailing wage determination from the National Prevailing Wage Center (NPWC).
An employer has to complete mandated recruitment steps (discussed later) before filing a PERM application.
The employer can electronically file Form 9089, proving the necessary recruitment steps under PERM as well as proving various other requirements within 180 days from the earliest recruitment step.
The PERM software system automatically accepts or denies the application. Part of the initial review includes a sponsorship check where DOL personnel will contact the employer by phone or email to make sure the job is offered to the non-resident.
The DOL can select an application for audit or supervised recruitment for both random and problematic applications.
If the sponsorship check is complete and the application has not been chosen for audit, the application is sent to an analyst for final review. The analyst determines if the application contains any inconsistencies or errors and if there are any issues that require an audit. If there are no violations or issues requiring an audit, the application will be certified and returned by the DOL analyst to the employer and a labor certification will be issued.
Where should an employer file an application by mail?
Employers can submit paper mail applications to the Atlanta NPC. The address and contact information are provided on the DOL contact information page.
What can cause an application to be automatically denied by the PERM system?
Some examples of issues that will automatically generate a denial by the software or will lead to a denial during later stages of review include:
The current salary determination from the SWA is expired;
The SWA did not run the job order for thirty days;
It is less than thirty days from completing the job order, posting, or latest recruiting step when the application is submitted; or
Form 9089 listed recruiting that was not within the 6 month/30 days recruiting period.
Does supporting documentation need to be filed with the ETA Form 9089?
Supporting documentation cannot be filed with the ETA Form 9089. But the employer is required to provide substantial supporting evidence proving that all of the requirements for labor certification have been met, including any “reasonable” conditions required by the DOL officer.
What triggers an audit?
DOL declines to reveal audit criteria to retain the integrity necessary to change audit requirements.
How long does the PERM process take?
An application usually gets approved within 3 months if it doesn’t get audited. If selected for an audit, it could be delayed over two years. Perm was designed to speed up labor certification, but can be delayed especially if the case is audited.
What are mandated recruitment steps?
The employer is required to place two Sunday ads for the job. For professional positions, the employer has to conduct three further recruitment steps. The employer needs to place a 30-day job order with the State Workforce Agency (SWA) as well as obtain a prevailing wage determination. Furthermore, the employer should internally post a job notice for 10 days. If there was a layoff within six months prior to filing the application for labor certification, the employer must prove and document consideration and notification of U.S. workers who were laid off and who worked in the same or a related occupation to the one for which certification is being sought.
When should mandated recruitment be conducted?
Mandated recruitment should be performed more than 30 days but less than 180 before filing.
What is a test of the labor market?
A labor market test is required when applying for labor certification. The test is accomplished through newspaper ads, an internal posting, and a job order on a DOL job site. All responses to the recruitment must be evaluated thoroughly and completely. Applicants can only be rejected by the employer for job-related, lawful reasons.
How does an employer determine whether to advertise under the recruitment regulations for professional occupations or unprofessional occupations?
The employer must recruit using the professional occupations standards if the profession involved is listed in Appendix A to the preamble of the final PERM guidelines. The occupations listed have been determined to be professional occupations, since they normally require a bachelor’s or higher degree. For other occupations not usually requiring a bachelor’s or higher degree, employers can simply recruit under the nonprofessional occupations requirements. Employers can conduct more recruitment than is required by the guidelines.
Can a decision of denial or revocation of a labor certification be appealed?
The answer is yes. If a labor certification is revoked or denied, an employer can request an appeal of the decision by submitting a written request to the Board of Alien Labor Certification Appeals (BALCA).
What does getting a labor certification mean? Can a non-resident start to work after a labor certification is obtained?
A labor certification is the first step in the permanent resident process to obtain the “green card”. After the labor certification application is certified by DOL, it must be submitted to the USCIS service center with a Form I-140, Immigrant Petition for Alien Worker. The non-resident needs to file I-485 to adjust status. The non-resident can only start to work after obtaining a green card.
How long is a labor certification valid?
The certification is valid for 180 days and expires if not submitted to USCIS within this timeframe.
Can an approved labor certification be revoked?
The answer is yes. Certifying officers can revoke approved certifications in the case of obvious errors, misrepresentation, fraud, or for issues or grounds related to the labor certification process.
Are there any ways to expedite the labor certification process?
The answer is yes. Professional nurses and physical therapists have been exempted from most of the Schedule A labor certification requirements. Also, some persons of exceptional ability are exempt from labor certification.
Can Labor Certification be Avoided Altogether?
The answer is yes. A labor certification is only required for non-residents applying for EB-2 and EB-3. Non-residents who qualify for EB-1, EB-4 and EB-5 do not require a labor certification. Applications requesting a job offer waiver requirement in the national interest under the employment-based second preference do not require a labor certification.
What is the application fee for PERM?
There is not an application fee for PERM.

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