Under the American immigration system, the essential requirement in employment-based immigration is the labor certification. Labor certification is based on a document certified by the Department of Labor (DOL) after an employer complies with certain filing and recruitment requirements. These requirements deal with proving that the employment of an alien will not adversely affect the wages and working conditions of similarly employed American workers. In complying with PERM (Program Electronic Review Management) requirements, an employer must demonstrate that, despite having recruited, he was not able to find a willing and minimally qualified American worker to fill the applied position.
Under PERM, an employer must obtain a prevailing wage determination (PWD) from the applicable state workforce agency (SWA) and recruit for the open position. If no able, qualified and willing American workers apply for the position, the employer will complete and submit to a DOL PERM web site www.foreignlaborcert.doleta.gov, Form 9089 describing the job duties, minimum requirements, wages, recruitment efforts and recruitment results. A DOL processing center will conduct a quick anti-fraud check to make sure the employer exists and has employees, and if the application is not selected for an audit, then it will certify the application.
The job requirements must be those normally required for the occupation and must not exceed the SVP. The SVP is the specific vocational preparation training time permitted for an occupation. “Permitted” means that the DOL has determined the SVP for each occupation (normal requirements in the United States), and employers may not set higher requirements than those described by the SVP, without documentation of business necessity.
SVP levels are determined by the O*NET’s job zones. Job Zone Levels are used on the O*Net to categorize jobs according to complexity. There are five job zone levels, from level one (jobs requiring little or no training) to level five (jobs requiring higher education, training and experience). Each job zone level is associated with a specific SVP range.
The employer may only exceed the provided O*NET SVP levels if he demonstrates that the requirements for a higher SVP are based on a business necessity. To prove a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of his business and are essential to performing the job in a reasonable manner. The regulatory requirements for employment under PERM are:
- In accordance with 20 CFR § 656.17(i)(1), the job requirements must represent the employer’s actual minimum requirements for the employment opportunity.
- Pursuant to 20 CFR § 656.17(i)(2), the employer must not have hired workers with less training or experience for jobs substantially comparable to that slotted for the alien worker. (20 CFR § 656.17(i)(5)(ii) defines “substantially comparable” as a job requiring performance of the same job duties more than fifty percent of the time.).
- As stated in 20 CFR § 656.17(i)(3), if the employer has already hired the alien, DOL will review the training and experience the alien possessed at the time of hiring since normally the employer cannot require American applicants to possess training or experience beyond that which the alien possessed when hired. There are two exceptions to this rule: (a) the alien gained experience while working for the employer in a position not substantially comparable to the position for which certification is sought as stated in 20 CFR § 656.17(i)(3)(i), or (b) it is no longer feasible for the employer to train a worker to qualify for the position as described in 20 CFR § 656.17(i)(3)(ii).
Experience Gained on the Job
Under PERM, an employer in this context is defined as an entity with the same federal employer identification number (FEIN). Therefore, experience gained with domestic and overseas affiliates and subsidiaries can be used as long as they do not have the same FEIN as that of the petitioning employer. It is only experience gained with the petitioning employer that cannot be used unless one of the two exceptions mentioned above applies.
- Job Order. For both professional and non-professional jobs, the employer must place a job order for the opportunity with a given state’s employment security agency (SESA) for a period of thirty days. A job order is similar to a notice about the opportunity from the employer to the state employment agency. Each state maintains a job bank to which the public has access. The starting and ending dates of the job order must be listed on Form ETA-9089.
- In-house Posting. In addition, the employer must post an in-house notice about the job opportunity. He must post the notice for at least ten consecutive business days, and the notice period must be between 30 and 180 days before filing of the labor certification. It is critical to note that the in-house posting, unlike other recruitment methods mentioned below, must state the offered salary for the position.
- Sunday Advertisement. The employer must place a recruitment advertisement on two Sundays, which may be consecutive, in a newspaper of general circulation in the area of intended employment. The employer must place the job advertisement at least thirty days, but not more than 180 days, prior to filing the labor certification.
- Mandatory Use of Available In-House Media. For both professional and non-professional positions, the employer must use all available in-house media, electronic or printed, in accordance with normal procedures used by the employer for similar positions. The key to this requirement is the term “normal procedure”. Therefore, if the employer ordinarily posts job opportunities on the company’s Web site, then it is mandatory to use this medium for the position designated for the alien worker. In addition, if the employer does not normally use any other in-house media, then the employer does not need to create one.
Three Additional Recruitment Steps for Professional Jobs
For professional jobs, in addition to the recruitment methods listed above, the employer needs to comply with at least three of the following:
- Job fairs
- Employer’s Web site
- Job search site other than employer’s
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program, if it includes identifiable incentives
- Campus placement office, if the job requires a degree but no experience
- Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
- Radio and television advertisement
Only one of the additional recruitment steps may take place within thirty days of the filing, and the dates and methods of each step must be listed in it. The employer must retain documentation pertaining to each recruitment step in case of an audit.
Print Advertisement Requirements
The PERM regulations at 20 CFR §656.17(f) are specific as to what must be contained in the newspaper or professional-journal advertisement. The advertisement must state:
- The name of the employer;
- Directions where to send resumes (if appropriate to the occupation) or where to report to the employer;
- A description of the job opportunity specific enough to apprise American workers (job titles such as accountant, school teacher or software engineer are sufficient);
- The geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will have to reside to perform the job opportunity.
While a salary does not need to be listed in the advertisement, if a wage is offered therein, it must not be lower than the prevailing rate. An advertisement such as the following, although minimal, is sufficient to meet the PERM requirements:
Accountant in St. Louis.
Send resume to: XYZ, Inc.
P. O. Box 123
St. Louis, MO 63132
Of course, while a small advertisement saves costs, one that details specific job duties and the minimum requirements is preferred to limit the number of responses from unqualified applicants, which results in unnecessary and wasteful administrative efforts.
Documentation of Recruitment Efforts
20 CFR § 656.17(e) contains requirements for documentation of the recruitment steps taken. For each mandatory, additional recruitment step, the required documentation is listed below:
- Newspaper advertisements—a copy of the page on which the advertisement appeared;
- Job order placed with the SWA—the start and end dates of the job order placed on the application;
- Job fairs—brochures advertising the fair and newspaper advertisements in which the employer is named as a participant;
- Employer’s Web site—dated copies of pages from the site that advertised the occupation involved in the application;
- Job-search Web site other than the employer’s—dated copies of pages from one or more sites that advertise the occupation involved in the application;
- On-campus recruiting—copies of the notification issued or posted by the college or university’s placement office naming the employer and the date it conducted interviews;
- Trade or professional organization—copies of pages of newsletters or trade journals containing advertisements of the occupation involved in the application;
- Private employment firms—documentation sufficient to demonstrate the recruitment has been conducted such as copies of contracts and advertisements placed by the firm for the occupation involved in this application;
- Employee referral program with incentives—dated copies of employer’s notices or memoranda advertising the program and specifying the incentives offered;
- Local and ethnic newspapers—copy of the page of the newspaper containing the employer’s advertisement; and
- Radio and television advertisements—copy of the employer’s advertisement along with written confirmation from the radio or television station stating that the advertisement was aired.
In-house Notice Requirements
Regulations 20 CFR 656.10(d) requires that a notice be posted regarding the filing of the application for permanent-employment certification. The notice, however, is not considered part of the recruitment effort. This posting is to comply with the statutory requirements provided by §122(b) of IMMACT90. If there is a bargaining representative, then he must receive this notice. If there is no such representative, then the notice is posted at the employer’s place of employment. The notice must contain the following information:
- A statement that the notice is being provided as a result of the application for permanent alien labor certification for the relevant job opportunity;
- A statement that anyone may provide documentary evidence bearing on the application to the Certifying Officer (CO) of DOL; and
- The address of the appropriate CO;
- The name of the employer;
- Direction for the applicants to report or send resumes to the employer (This requirement, however, contradicts DOL’s claim that this notice is not a recruitment vehicle. It is possible that this was an oversight since the regulations do not require that responses from the posting be included in the recruitment report);
- A description specific enough to apprise American workers of the job opportunity;
- The geographic area of employment with enough specificity to apprise applicants of any travel requirements or where the applicant will likely have to reside to perform the job opportunity; and
- State the rate of pay. (However, the rate of pay may be listed as a range as long as: (1) the lower end is at least the prevailing wages; and (2) the top end is the actual salary of the alien (or higher) if he is presently employed in that position.)
Under the PERM law, the SWA determines the prevailing wage survey by using: 1) a collective bargaining agreement if applicable; 2) the Occupational Employment Statistics Survey (OES); 3) an alternative survey; or 4) the Davis-Bacon Act or McNamara Service Contract Act, if applicable. The law contains the following requirements:
- Mandatory determination before filing. Each application must contain a prevailing wage determination made by the SESA of the state where the job is located. There is no centralized format for the wage request.
- Match with 100% of the prevailing wage. Once the prevailing wage is determined, the PERM regulations require the employer at least to match the prevailing wage.
- 4-level wage system. The PERM regulations contain a four-level wage system corresponding to the experience and education requirement of the position as well as the level of supervision.
- Components of the wage compensation. The general rule is that the wage consists of the payment guaranteed by the employer, which is not discretionary. The payment guarantee may come from an employment agreement or inferred by law. Therefore, commissions, bonus or other incentives do not fall under the definition of wages because they are discretionary.
- When the prevailing wage must be paid. The employer must pay the prevailing wage as soon the USCIS grants the alien worker’s I-485 application for adjustment of status.
- How long the determined wage is valid. The wage, determined by the state, is valid for one year. If it is older that one year, then the petitioner must obtain a new one from the applicable SESA.
The employer does not need to file any supporting documentation with the labor certification. However, in the even of an audit, documentation of recruitment efforts and responses to those efforts, as well as other matters, must be assembled and submitted to DOL within thirty days of the request. As part of the audit process, DOL may require a “supervised recruitment.”
After an audit has been completed, the regulations state that DOL may:
- certify the application;
- deny the application; or
- order supervised recruitment in future cases for up to two years when there is a substantial failure to produce documentation, inadequate documentation, material misrepresentation or for any other appropriate reason. If the application is denied, the employer may request a review by the Board of Alien Labor Certification Appeals.
No audit criteria are described in the final regulations, nor has DOL discussed the possibility of such criteria being inserted therein. However, it is fairly safe to say that some or all of the following criteria will be among the criteria that may lead to an audit:
- A wrong answer to “efficiency” questions on Form ETA 9089, i.e., those questions that have a “yes” or “no” response;
- Labor market data reflecting potentially available American workers,
- A small company that may be unduly influenced by the alien for whom certification is sought;
- A company that may not have the financial resources to pay the salary;
- Inconsistencies in the paperwork reflecting an alien who does not appear to meet the minimum requirements;
- Requirements that are outside the O*NET SVP;
- Requirements that must be justified by a business-necessity argument;
- A language is part of the minimum requirements.
The regulations contained in 20 CFR § 656.17(e) identify what supporting documentation must be available for the audit. This documentation includes:
- Recruitment documentation, including mandatory steps (two print advertisements and a thirty-day job order) and, if the position is one of the listed professional positions, documentation of additional recruitment steps;
- A recruitment report signed by the employer, describing the recruitment steps and the results, including the number of hires and American workers rejected, categorized by lawful job-related reasons. Attached to the recruitment report must be the American applicants’ resumes or applications sorted by reasons for rejection;
- Documentation of the business necessity for any requirements beyond the O*NET job zone;
- If the application relates to a combination of occupations, then documentation that the employer normally employed persons for that combination of occupations; and/or workers customarily perform the combination of occupations in the area; and/or the combination job opportunity is based on a business necessity;
- If the alien’s experience has been gained wholly or in part by experience with the petitioning employer, then documentation that the experience was gained in a position not substantially compatible to the position for which certification is being sought or documentation that is no longer feasible to train a worker to qualify for the position;
- In a live-in situation, there must be documentation of two working parents and young children or evidence of an erratic work schedule etc;
- If there were layoffs within the last six months, documentation that the employer has notified and considered all potentially qualified, laid-off American workers;
- If it is a question of a closely held corporation in which the alien has an ownership interest, then documentation of a bona fide job opportunity.