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Typically the first step of the permanent residence process, the labor certification application engages the employer in a test of the domestic labor market to make sure that a is not a U.S. worker who is able, willing, and qualified to fill the role sought out by the foreign national. The process stems from the U.S. Department of Labor’s intents to protect the interests of domestic workers. The labor certification application process has been streamlined since 2005 with the innovation of the Program Electronic Review Management procedure, otherwise known as PERM. Before PERM, the labor certification process along with the immigrant visa petition could take upwards of five years to complete, but now it takes approximately five months. There is no fee to apply for the labor certification application.
For foreign nationals seeking permanent residence status in the United States, the labor certification is only necessary if the foreign national qualifies as EB-2 or EB-3 applicant. The only exception is if the foreign national qualifies under the EB-2 National Interest Waiver and the labor certification application is not required to be submitted on their behalf. The preference system exists as follows:
First preference (EB-1): Priority Workers —highly acclaimed individuals with extraordinary ability in their field, outstanding professors and researchers, international executives and managers (28.6% of visas allocated);
Second preference (EB-2): Professionals Holding Adv. Degrees and People with Outstanding Ability — applicants with graduate-level degrees, extended experience in their respective field, or outstanding ability in their profession (28.6% of visas allocated);
Third preference (EB-3): Skilled Workers, Professionals, and Other Workers — a very broad category that covers, for the most part, general applicants who do not qualify as (EB-1) or (EB-2) (28.6% of visas allocated);
Fourth preference (EB-4): Certain Specialized Immigrants — applicants who come from a set list of very specific and specialized backgrounds, there are many varieties of classified (EB-4) applicants, travel.state.gov should be consulted for the extensive list (7.1% of visas allocated);
Fifth preference (EB-5): Investors — applicants who have demonstrated interest and intent to invest in enterprises that will stimulate job creation in the United States (7.1% of visas allocated).
At the very minimum, the role for which the employer is seeking a labor certification must be both full-time and permanent. In the labor certification application, the burden of proof is on the employer to prove that the role in question is full-time and permanent. Generally, a minimum of 35 hours a week satisfies the full-time requirement. As for permanent employment, this by no means suggests that employment will continue for an infinite duration, but rather that there is a continuous business need to be fulfilled by this role and that the beneficiary will not merely be completing a short-term assignment. This includes any seasonal employment opportunities. Therefore, if the employer engages in any kind of seasonal business, they must be able to demonstrate that the foreign national will engage in relevant work on a permanent, year-round basis. If either of these requirements are not satisfied, the Department of Labor will immediately reject the application.
Next, employer must not be seeking to fill this role, with a foreign national or otherwise, if the vacancy is due a work stoppage relating to a labor dispute. This includes any form of strike or lock out.
The terms and conditions of employment cannot in any way be contrary to local, state, or federal law or regulation. This includes unlawful discrimination by race, color, creed, national origin, age, sex, disability, religion, or country of citizenship.
The employer has sufficient funds to pay the appropriate, prevailing wage to the employee, and the employer will place the foreign national on payroll on or before the date the foreign national is approved for permanent residence.
When the employer seeks to begin the labor certification process, they must first start by registering with the Department of Labor online. To do this, the employer will need the full legal name of the company seeking to sponsor the foreign national, their Federal Employer Identification Number (FEIN), their North American Industry Classification System (NAICS) code, the company’s year of incorporation, total number of company employees, and contact information for a representative of the company.
It is important that when setting up the employer profile on the Department of Labor website, the employer uses the correct Federal Employer Identification Number, or else the PERM registration will likely not be successful. In most states, the employer can confirm the Federal Employer Identification Number of their business through a public online database found on the Secretary of State website for their respective state. If the employer cannot confirm their FEIN through this business database, the FEIN can also be found on the top of tax filings as well as on an employee’s paystubs or W-2 tax form.
Next, the North American Industry Classification System code, which communicates the nature of the employer’s business, can be found on the government census website (www.census.gov/eos/www/naics/).
Once this data has been collected and confirmed, the employer is ready to register with the Department of Labor. To do so, the employer should create an ‘employer profile’ on www.plc.doleta/gov. It is important to note that this step cannot be completed by an attorney on behalf of the employer, but must be done by the employer themselves.
An employer may only reject a U.S. applicant for lawful reasons relating to this role, which basically means that the employer can only reject a U.S. applicant if they are unwilling, unable, and/or unqualified for this role. In fact, an employer cannot reject all U.S. applicants in favor of a foreign national if at least one of those U.S. applicants meets the minimum requirements of the role as advertised, even if the foreign national is more qualified for the role in the eyes of the employer than any other U.S. applicant. Therefore, the employer must be very careful in how they phrase their posted job requirements, both to ensure they attract the right potential employees and to avoid an audit by the Department of Labor on the labor certification application. If the employer decides to reject U.S. applicants because they are unqualified for requirements which were not explicitly stated in the labor certification application, the Department of Labor will take this as a sign that the employer did not partake in what is known as “good faith recruitment” efforts and the application will be rejected.
The concern of the Department of Labor regarding good faith recruitment begins with the job title. Regardless of whether it is intentional, having a misleading and inaccurate job title will likely have a chilling effect on U.S. applicants. If the job title seems vague or does not have any logical relation to the role requirements put forth by the employer, the employer is putting themselves at risk for being found noncompliant with the good faith recruitment mandate and the Department of Labor may open an audit into the application, since this practice is not in line with attracting the greatest number of potential U.S. applicants.
There may arise a situation where the foreign national already is an employee and the employer is seeking labor certification to sponsor the foreign national as a means to retain the individual. If this is the case, the Department of Labor maintains that it is still the responsibility of the employer to put forth a good faith recruitment effort to see if a U.S. applicant can fill the role. Often times though, the employer wishes to circumvent the recruitment process outlined in the labor certification application, but the employer should be careful that their actions do not result in an audit or denial of the labor certification application.
When drafting the job description and minimum role requirements, employers should take care to include only objective requirements including education, work experience, and other skills, as opposed to subjective values and preferences. The primary issue with subjective values as job requirements is that they lack quantifiability with which to test against the labor market to confirm that no U.S. applicants could be found during the recruitment period who are able, willing, and qualified for the role. In a similar vein, employers should avoid listing “knowledge” or “familiarity” with an industry or subject matter as a job requirement, as knowledge and familiarity are similarly difficult to quantify. (35) Any preference listed by the employer may be interpreted as a requirement, and if the employer lists a preference but treats it as a restrictive requirement and disqualifies otherwise qualified U.S. applicants because of this preference, the Department of Labor will open an audit into the application. During the application process, the employer may be asked to present evidence demonstrating the business necessity of each job requirement, so the employer should collect this evidence ahead of time to prepare in case this question arises.
During the application process, the Department of Labor may further review whether the posted job requirements for the role in question are in line with the past hiring practices of the employer. If the employer has hired applicants with less education or experience for similar roles, they must be prepared to disclose why the requirements have shifted, either due to a change in the responsibilities of the role or due to a change in the hiring practices of the firm (i.e. the firm has become more competitive).
Furthermore, employers should try and avoid creating overly specific lists of requirements, as the Department of Labor will see this as an overly restrictive move intending to limit the number of qualified U.S. applicants. For the same reason, employers should similarly try to avoid tailoring the job requirements to a specific foreign national they are seeking to hire for this position. The labor certification process, thus, is a delicate balancing act, as the employer similarly does not want to draft overly generic job requirements that would produce a number of qualified U.S. applicants, as the labor certification application will certainly get denied and this will be a waste of resources for the company.
Employers should take care that the minimum requirements for the role do not exceed the foreign national’s own qualifications. In fact, if the foreign national is currently an employee of the business, the minimum requirements of the job must apply to the foreign national before they begin their employment with the business. For example, if the foreign national graduated with a degree and then worked for the employer for two years, they would not qualify for “two years of work experience” as a job requirement. If there arises a situation where the foreign national does not meet the standard minimum qualifications for this role, during the recruitment process the company may create a list of alternative requirements and employ what is known as “Kellogg Language” in the job posting and on the labor certification application. Along with listing the primary requirements and the alternative requirements, the employer may include language along the lines of “any suitable combination of training, education, or experience is acceptable” to surpass this obstacle.
Before continuing to the next step of the labor certification process, it would be prudent for the employer to confirm that it will be able to secure an approval for Form I-140 from the USCIS. On this form, the employer will have to verify that they will be able to pay the foreign national the prevailing wage for the role.
If the foreign national is already an employee of the company and the employer is already paying them the prevailing wage for their role, then the employer should move forward with the next step of the labor certification application process.
If the foreign national is already an employee of the company and the employer is not yet paying them the prevailing wage for their role, the employer should verify that they will be financially able to pay them the prevailing wage before or on the date they receive permanent residence, as well as be able to document their ability and intention to provide this pay raise.
If the foreign national is not yet an employee of the company, the employer should gather documentation to confirm their ability and intention to provide the prevailing wage for the foreign national.
The next step of the labor certification process is for the employer to file the prevailing wage request with the Department of Labor’s National Prevailing Wage Center to receive the prevailing wage determination. Employers are required to pay the prevailing wage or higher as outlined by the prevailing wage determination in an effort to discourage employers from recruiting foreign nationals with the intention of paying them below market wages for the role in the United States. The request is filed online through ETA Form 9141, and this form should be completed with significant attention to detail, as the information provided must match responses when later completing ETA Form 9089. If the role in question is a union position, a copy of the collective bargaining agreement which outlines salary determination should be attached to the prevailing wage request and the CBA box should be checked.
The prevailing wage determination typically has a validity period of 90 days, and the employer should pay careful attention to the date of expiration, as the Department of Labor requires that the prevailing wage determination be valid either on the day that the recruitment period begins and/or when the labor certification application is filed with ETA Form 9089. If neither of these conditions are met, the employer cannot request for the validity period of the original prevailing wage determination to be extended, but will be required to resubmit the prevailing wage request to receive another prevailing wage determination.
The employer, if they wish, can begin the recruitment period before receiving the prevailing wage determination, although this may result in some complications along the way. First, the employer must be vigilant in making sure that if beginning the recruitment period before receiving the prevailing wage determination (i.e. before the period of validity) that they must submit the labor certification application while the prevailing wage determination is still valid. Next, the employer must be prepared that they may have to adjust their recruitment process if the prevailing wage determination comes back significantly higher than originally anticipated. If the employer would not be able to pay a higher wage than what they envisioned at the beginning of the recruitment period, then it is recommended that the employer wait to receive the prevailing wage determination before starting the recruitment process.
The employer must undergo formal recruitment efforts open to U.S. applicants, even if they have identified a foreign national whom they hope to hire. Recruitment efforts must last for a minimum of 30 days and can last no longer than 180 days before the labor certification application is filed.
The steps for formal recruitment differ depending on whether the role can be classified as professional or nonprofessional. An occupation is considered “professional” by the Department of Labor if a bachelor’s degree or graduate degree are standard educational requirements for the role, whereas an occupation is considered “nonprofessional” if a university degree is not a standard educational requirement.
Employers seeking applicants for both professional and nonprofessional roles are required to post a State Workforce Authority job order online as well as publish two Sunday print ads in a newspaper that circulates in the area of employment. The job order must run for thirty days (not just thirty days since the employer requested the job order), during which the two Sunday print ads must run as well. If the employer is planning on moving, they must conduct formal recruitment in area to which they are planning to move.
Employers seeking professional applicants must additionally use three supplemental forms of recruitment. These supplemental forms of recruitment include: posting the job on the employer website, posting an advertisement on a non-employer job search website, publishing a print advertisement in a local advertisement, instituting an employee referral program, commissioning an advertisement for radio or television, posting an ad with a trade or professional organization, attending a job fair, hiring an employment agency or headhunter, and engaging in on-campus recruiting.
It should be noted that this classification is not depending on whether the foreign national, or other applicants for that matter, hold or are required by the single employer to have a professional degree, but rather depends on whether that role on average requires applicants to hold a university degree. If an employer is not certain whether the role classifies as professional or nonprofessional, it is recommended that they treat the role as if it were considered professional and engage in the additional forms of recruitment required.
Print advertisements, regardless of whether published in a newspaper or in a journal, must contain the following information:
Failure to include any one of these in the advertisements is grounds for denial of the labor certification application. Similarly, if the employer fails to accurately represent any of this information in the advertisement, this is also grounds for denial of the labor certification application, as the employer did not conduct a proper test of the labor market.
The employer should maintain concrete evidence of all recruitment efforts undertaken. The Department of Labor has determined that merely presenting invoices for a posted advertisement are insufficient. For newspaper advertisements, a copy of the page on which the advertisement was posted should be sufficient, although if possible, the employer should retain the original tearsheet from the publication in addition to the actual advertisement.
The employer must post notice at the worksite of both the job opportunity and that a labor certification application is going to be filed. This is intended to further publicize the job opportunity in hopes that current employees known to be qualified might be interested in the role, or perhaps that current employees will share the role with someone in their circle, thus expanding the pool of potential U.S. applicants.
The posted notice must adhere to the following requirements:
Failure to follow these requirements will result in rejection of the labor certification application.
A major part of the “good faith recruitment” process is the proper consideration of U.S. applicants by the employer. Even if the foreign national is currently employed in the role, the employer must be prepared to evaluate applicants and conduct interviews for potential U.S. workers to fill the role. All U.S. applicants who have submitted a complete application for the role must be contacted and considered by the employer. The employer must include in the recruitment report all individuals who applied for the position in the sixth month period before the filing of the labor certification application. Even if all formal recruitment efforts have been local, if there is an applicant who resides outside of the immediate area where the employer is based, the employer still must consider them if they have declared to be willing to relocate at their own cost.
The Department of Labor requires that employers take a full 30 days, known as the 30-Day “Quiet Period”, to have sufficient time to contact all applicants and conduct interviews for the role. Any labor certification application where the employer does not adhere to this 30-day quiet period will be immediately rejected.
In moving forward with the labor certification application, the burden of proof is with the employer to prove that the job opportunity was genuinely open to any U.S. applicant and that all U.S. applicants were properly considered and rejected only for lawful reasons relating to the role as outlined by the job requirements. The employer should be prepared to present the Department of Labor with the legal reason why U.S. applicants were rejected in favor of the foreign national, if requested. Just as they may not make the job requirements unduly restrictive, employers cannot make it unduly difficult for an applicant to secure an interview. Furthermore, an applicant cannot be rejected because they are overqualified for the role, or because their requested salary on the application is higher than the offered salary and they are otherwise qualified.
Generally, the employer should not engage in any activity that on paper appears to have a chilling effect on the number of U.S applicants with interest in the role. Such actions include scheduling interviews weeks in advance for no apparent business reason, perhaps with the intention of having U.S. applicants lose interest in the role. Taking steps like these as a means to ensure that there will be no obstacles in securing the role for the foreign national are counterintuitive, since anything done to suggest that the employer did not conduct good faith recruitment efforts are grounds for the Department of Labor to open an audit into the case.
The employer is much better off drafting the minimum job requirements with care, while not going as far as tailoring the requirements to the foreign national, so that they may have adequate legal reason to reject applicants and may present it as such in the labor certification application.
To verify that the employer engaged in good faith recruitment efforts, the employer must assemble a recruitment report. The report must be signed by the employer who conducted the interview process or by their representative. The recruitment report must contain a full description of all the recruitment efforts undertaken, a summary of the outcome which includes the number of applicants and the number hired, a summary of the applicants rejected including the lawful job-related reasons for which they were rejected, and the number of total applicants rejected in each category.
The recruitment report should specifically state whether a given applicant was rejected for being unqualified, unable, or unwilling. In this context, unqualified means the applicant does not meet the employer’s role requirements as explicitly stated. Unable means the applicant is unable to complete the duties of the job (e.g. unable to consistently lift heavy objects due to spinal injuries). Unwilling means that the applicant was extended the offer but rejected it for whatever reason.
The names need to be listed for each U.S. applicant rejected under each specific category. For example, a potential U.S. applicant who only holds a high school diploma when the employer explicitly stated that having a university degree is a requirement for the role would be classified in the recruitment report as unqualified due to not possessing the adequate educational requirement.
The final step of the labor certification process is to complete and submit the ETA Form 9089 through the online Department of Labor PERM portal. A paper copy may be submitted in lieu of the online version via mail to the National Processing Center in Atlanta, although this is not recommended. Extra care should be taken in completing ETA Form 9089, as even a mere typographical error is grounds for rejection of the application.
Employers or their representatives completing this form are encouraged to upload thorough documentation to support their applications as soon as requested to do so, to interpret requests for information as broadly as possible, and to anticipate that thorough documentation will be further needed to ensure that the employer properly followed each step of the labor certification process as mandated by the Department of Labor. The guidance below touches on sections where errors are frequently made.
The majority of Section C will be autopopulated by the PERM system and will not be able to be changed. If while completing ETA Form 9089, one sees that there is an error in the autopopulated information, then the best course of action is to create another PERM account, although the system may permit one to make edits on the PERM account information page without creating a new account. In either case, incorrect yet autopopulated information should never go uncorrected.
Here, the employer contact information must be entered, which includes the individual’s legal name, work address, phone number, and email address. In filling out this form, one should be careful to provide only contact information for the employer seeking to sponsor the foreign national, not the contact information of an attorney or other representative. Ideally, this should be the individual who thus far has overseen the good faith recruitment efforts and will be able to speak intelligently in regards to these efforts.
The responses provided in this section must exactly match the information provided on the prevailing wage determination. The prevailing wage determination tracking number, assigned skill level of the position, the standard occupational classification code, and the associated occupational title should be listed. If the employer is located in multiple areas and has received multiple prevailing wage determinations as a result, the safest move for the employer if they are unsure which to provide is to list the highest wage.
In this section, the wage intended to be paid to the foreign national should be listed. If the wage has already been predetermined and will not fall somewhere along a range, then the employer should leave the “To” box empty. As mentioned, the value listed in the “From” box must meet or exceed the amount indicated by the prevailing wage determination.
For the primary worksite, the location where the foreign national will complete the duties of their job should be listed, which may differ from the employer’s headquarters. The job title as drafted by the employer should be reported, rather than the standard occupational classification code job title.
In this section, the employer must outline the minimum requirements for the role in question exactly as presented during the recruitment process. The minimum degree requirement should be disclosed. If training is required, then the employer must disclose exactly how many months of training they require as well as the field of the required training. Similarly, the number of months of necessary experience also must be listed. If the employer advertised that they would accept a range of years of education, training, and/or experience, then the bottom of that range should be listed, as the Department of Labor is looking to identify the minimum requirement.
The employer will also be asked to list alternative requirements in this section, if any. If the foreign national only qualifies for the role through the alternative requirements, then the employer is advised to use the Kellogg language described before in this section.
Next, the employer will have to disclose the job duties the foreign national will face in this role, specifically the equipment used, the working conditions they will be subject to, and whether travel is required for this job.
Under special requirements, it is advised that the employer list all of role requirements as published during the recruitment period, regardless of whether they appear to be special. There is no retribution by the Department of Labor for the overabundance of information provided, however the employer may easily be punished with an audit or a rejection if not enough information is provided.
This section requests the employer to report the recruitment efforts undertaken by the employer as outlined in Step 6. It should be noted that in Subsection G of this question, the employer is asked whether they received payment from the foreign national for filing the labor certification application, which is explicitly prohibited and answering yes to this question will certainly lead to an audit and most likely a denial.
Once the labor certification application has been filed, the Department of Labor will contact the employer to make sure they are aware that an application has been filed in their name. This contact will be initiated over email, where the employer will be prompted with a link which will ask them to complete four questions to confirm the employer is aware of the application and wishes to proceed.
Applicants should be aware that applications are processed in a first-in, first-out basis, and that there will be no option for the application to be expedited, even if the foreign national has a child that is in danger of aging out. Furthermore, no modifications may be submitted once the application is filed. Before a final determination is made on the application, the Department of Labor may request that the employer provide supplemental documentation as part of an audit or not.
The final determination of the labor certification application is made on the following grounds. First, that the employer has observed all of the requirements of the labor certification process. Second, that the employer was legitimately unable to identify as a U.S. applicant who is able, willing, and qualified for the job. Third, that the said employment of this foreign national will not adversely affect the standard wage and prevailing working conditions of U.S. workers in a similar role.