U.S. IMMIGRATION SYSTEM | PERMANENT RESIDENCE | LABOR CERTIFICATION PROCESS
Most employment-based immigration cases commence with the employer’s filing of a Labor Certification Application. Effective March 28, 2005, the U.S. Department of Labor implemented the Program Electronic Review Management (PERM) Program, which essentially is a computer-driven review process intended to expeditiously process standard, non-problematic applications while identifying nonconforming and/or problematic cases for audit and possible investigation.
The Labor Certification Application process is conducted under the supervision of the U.S. Department of Labor, which is a federal agency charged with protecting the interests of U.S. workers. In order to gain approval of a Labor Certification Application, the employer needs to establish two key points:
- that the employment of the foreign national will not take a job away from a fully qualified U.S. worker;
- that the employer will pay the foreign national at the prevailing wage rate so as not to depress (or undercut) the wages paid to U.S. workers.
Please note: There is a key conceptual difference between the recruitment standards required for Labor Certification Application purposes and those utilized in “real world” hiring decisions. Normally, an employer seeking to fill a position selects the best-qualified applicant as determined through a wide range of both objective and subjective considerations. But when the objective is to qualify a foreign national for permanent residence through employment, the standard is starkly different since the employer here needs to show that the foreign national is the only fully qualified applicant for the position, based upon objective criteria appearing in the Labor Certification Application. This standard, therefore, requires an employer—usually acting in conjunction with immigration counsel—to precisely describe the position being offered and, more importantly, define the legitimate, job-related requirements for this position. This must be done in a manner that conforms with acceptable hiring criteria while incorporating those job requirements needed to perform the duties of the position in a reasonable professional manner.
Three Steps to a PERM Application
Step 1: Recruit
The first required step in developing a Labor Certification Application is for the employer to undertake a PERM-compliant recruitment/advertising effort in order to determine the availability of fully qualified U.S. workers for the position. The PERM regulations require an employer to go through a rigorous recruitment effort, partly undertaken in conjunction with the State Workforce Agency and in part per the employer’s own initiative. For professional positions the employer is obligated to:
- run a series of ads in a locally circulated newspaper;
- perform three additional recruitment initiatives as drawn from a menu of allowable recruitment activities;
- post the job to a nation-wide job bank; and
- affirmatively and proactively notify the employer’s workforce of its sponsorship of a foreign national for permanent residence.
In most instances, this mandatory recruitment/advertising effort can be accomplished within 45-90 days.
Step 2: Filing
The next step of this process consists of actually filing the PERM application with the U.S. Department of Labor. The processing procedure here somewhat resembles the process utilized by the Internal Revenue Service (IRS) in reviewing federal income tax returns – i.e., utilization of computer-based models to quickly and expeditiously process standardized, low-risk applications while flagging for audit and further investigation nonconforming, problematic PERM applications. The most common reasons that an audit would receive a flag would be: 1) incomplete or nonconforming recruitment/advertising initiatives; 2) inclusion of special requirements that are not generally accepted as standard to the position (such as language requirements); and 3) improper rejection of fully qualified U.S. workers. While processing times vary significantly, the Department of Labor generally processes PERM applications within roughly a 45-100 day timeframe.
Step 3: Compliance
Once the Labor Certification Application is approved, the final step is that the employer then has a certain document retentions obligation. The U.S. Department of Labor has the authority to conduct post-approval audits that will verify the integrity and thoroughness of an employer’s PERM application efforts.
U.S. Workers: U.S. Citizens and Lawful Permanent Residents in possession of a "Green Card."
Prevailing wage: DOL regulations state that the State Job Service is responsible for ascertaining the prevailing wage for the position. If the state office finds that the salary offer is below the prevailing wage, it will advise the employer of this fact and provide an opportunity to adjust, rebut, or correct the offer.
Requirements for the position: These must bear a reasonable relationship to the position in the context of the employer's business and must be essential to perform, in a reasonable manner, the job duties as described by the employer. DOL insists that the employer not tailor the job description and requirements to the particular skills of the alien or structure the PERM to intentionally exclude U.S. workers from consideration. If so, these will be considered to be "unduly restrictive."
Unusual requirement as being a "business necessity": The Board of Alien Labor Certification Appeals (BALCA) has decided that as justification for an unusual requirement, an employer may demonstrate a business necessity by showing that the requirement (1) bears a reasonable relationship to the position in the context of the employer's business and (2) is essential to perform, in a reasonable manner, the job duties as described by the employer. In order to document the first requirement, the employer may have to demonstrate that the employer has used the same requirements in the past to hire persons to fill similar positions, and that the requirements are essential to the duties relating to the position, not necessarily to the entire business.
Recruitment efforts: The objective of the recruitment program is to determine whether U.S. workers are available for the position. Although an employer has no duty to contact an applicant when the applicant’s resume demonstrates that he or she does not meet the minimum job standards, there is an affirmative obligation to further investigate a candidate's credentials when, even though he or she may not appear to be fully qualified, his or her resume shows a broad range of experience, education and training such that there is a reasonable possibility that he or she is qualified.
Special Handling: There is a special procedure known as Special Handling that has been established for certain qualifying university teachers. If an employer is filing a Labor Certification Application for a university teaching position, it needs to show simply that the foreign national is the best-qualified applicant for the position, rather than having to meet a far more rigorous standard of showing that the foreign national is the only fully qualified applicant for the job. Furthermore, if the PERM application is filed within 18 months of the selection of the foreign national pursuant to a good faith faculty recruitment search, the sponsoring employer can use its previously undertaken faculty recruitment efforts (provided that it has run at least one print ad for the position) rather than having to conform to the stipulated recruitment/advertising efforts that have been mandated for non-university positions.
Handling overqualified applications: Over qualification by itself is not a lawful, job-related reason for rejecting a U.S. worker, and it is not permissible for an employer to assume that an overqualified worker will take the job for a short term. "Employment" is defined as "permanent, full-time work" with "permanent" meaning "meant to last indefinitely" and the term "indefinite" suggesting "lacking precise limits."
Bona fides of job offer: The PERM will be denied if DOL concludes that there is no legitimate job opportunity for U.S. workers. This situation sometimes arises when the foreign national for whom the PERM is sought is an investor or actively involved in the management or control of the employer. An investor in a business may not be considered an employee for PERM. BALCA, in examining the issue, states that the PERM must demonstrate that (1) the business is not a "sham and scheme" designed to obtain PERM for the alien, and (2) the business has not come to rely so heavily on the alien that it would cease to exist without the alien.
Experience gained on the job: DOL believes that if the foreign national has gained experience with the same employer prior to the PERM being filed and that very experience is now stated as a minimum requirement, the employer must explain why it is not feasible to hire a U.S. worker and provide him/her with the same training and/or experience. To do this, it may be necessary to show that business conditions have changed since the alien was hired, including documenting a change in business needs, the growth of the company, a restructuring of how the work is done, etc.
- In March 2005 the labor certification process changed significantly from Reduction in Recruitment Labor Certification to PERM Labor Certification. Special Handling Labor Certification applications for University Professors and Researchers are still available under PERM.
- Information regarding pending labor certification applications filed before March 2005 can be found at: DOL processing times at backlog centers.
The Labor Certification process and procedure is very specific and potentially very complicated. An employer that wishes to retain the services of a foreign national who is not a permanent resident of the U.S. must undertake this process and procedure even though the employer is not interested in hiring anyone else.
The regulations are clear in their requirements that employers perform the routine functions of recruitment referral, selection, and verification within the specific time frames allotted by the regulations. The law also clearly states that no foreign national may be employed by an American employer unless they have work authorization from the immigration authorities. Filing the PERM, processing the PERM, and even gaining approval of the PERM, is not approval for permanent employment, and thus, the PERM is only the first step (although the major one) in qualifying a foreign national for work authorization on a permanent basis.