Labor Certification
When an alien seeks to become a legal permanent resident (Green Card holder) of the United States, he/she must usually apply under the general categories of either family based sponsorship or employment based sponsorship. Under the employment based sponsorship, before an application for permanent residency is submitted to the United States Immigration and Citizenship Services (USCIS), a Labor Certification approval must be obtained.
The main object behind Labor Certification is to ensure that a U.S. worker does not lose his/her job opportunities to an alien.
Since March 28, 2005, the employer must submit a Labor Certification form ETA 9089 under PERM regulations. The LC determination depends on whether there are no sufficient United States workers who are able, willing, qualified and available; whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.
The employers have the option of submitting the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center. As per the provisions of PERM, documentation is not to be submitted at the time of filing of the LC but the employer must provide the required supporting documentation if the employer’s application is selected for audit or if the Certifying Officer otherwise requests it. The employers should file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).
In order to file the LC electronically the employer must have a Permanent Online System account, username, password, and PIN. Permanent Online System account – An account is created after an employer has submitted registration information online and the employer information is verified by DOL. The employer may also create Sub-account – The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents.
As per the provisions of PERM pre-filing recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.
Labor Certification is a time-consuming process and requires the co-operation of the employer. Several forms and documents as pre-filing requirements for professional positions must be submitted along every step of the way.
- Prevailing wage determined by SWA (State Workforce Agency). The employers must pay 100% of the prevailing wage for the position. It should include 4 levels of prevailing wages commensurate with education, experience and the level of supervision. The prevailing wage determined by SWA is valid for 90 days to 1 year from the date of determination.
- 30 day Job Order with SWA.
- The employer must place 2 advertisements of the required position in a local Sunday newspaper between 30 and 180 days of filing, describing the job title, job site, duties, hours and salary.
- The employer may substitute a national journal ad for one Sunday newspaper ad where the position requires experience and/or an advance degree.
- The employer may submit documentation of any 3 of the following types of recruitment activities:
- job fairs
- employer’s website ads
- Job search website
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television ads
The Job requirements of the employer must represent the employer’s actual minimum requirements and show that they bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer must not have hired workers with less training or experience for substantially comparable jobs. The Employers may be required to provide position descriptions, percentage of time spent on the various duties, organization charts, and payroll records in order to document that they have not hired workers with less training or experience for substantially comparable jobs. If the alien beneficiary is already employed by the employer, the employer can not require U.S. applicants to possess training and/or experience beyond what the alien possessed at the time of initial hire by the employer, including as a contract employee unless: 1) the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time.
If the employer has had any layoffs in the sponsored employee’s occupation or a related occupation within six months before filing, the employer must document that it has contacted and considered all laid-off employees.
It is very important that the employer agrees to pay the prevailing wage for the type of job offered. If he/she offers the alien a salary below the prevailing wage, it will not be approved by the DOL.
Only after the employer can prove that there are no U.S. workers qualified or available for the position, and that the job offered corresponds to DOL regulations, will the Labor Certification be approved.
The DOL Certifying Officer (CO) may approve, deny, or require an audit of the LC filed. There is no criterion in the regulation for ordering an audit or ordering a supervised recruitment. The employers are given 30 days to respond to the Audit Letter from the CO. Failure to respond to the CO will result in denial of the application and a finding of fraud or misrepresentation. If there was fraud or misrepresentation, the CO may penalize the employer by ordering supervised recruitment for all applications filed by the employer for 2 years. The CO may revoke a prior approval at any time after providing notice of intent to revoke – employers will have 30 days to submit rebuttal. The CO will issue a decision within 30 days of receipt of the employer’s rebuttal evidence.
The employer, if aggrieved with the decision of the CO, may file a request for reconsideration within 30 days of a denial, or Employers may file a request for review by BALCA within 30 days of a denial. No new information may be submitted in support of the application.
There is no fixed processing time taken for DOL approval, but can take several months. The employer must retain recruitment materials and results for five years for audit purposes for each PERM filing.
After the Labor Certification has been approved, the next stage of processing is to file an employment-based petition (Form I-140) with the USCIS. Once approval of this petition is obtained from the USCIS, the alien is ready to make a final application towards obtaining permanent residency.
If an alien is physically present in the United States and has been in valid legal status since his/her entry, he/she can obtain his/her Green Card without leaving the U.S., through a process called ‘Adjustment of Status’. If he/she is not eligible for this, either because he/she is not physically present or because he/she is out of legal visa status, the process may be completed at a U.S. Consulate, and is called ‘Visa Processing’.
H-2A Temporary Labor Certification for Agricultural Workers
Agricultural employers who anticipate a shortage of domestic workers are allowed to bring in non-immigrant aliens to the U.S. to perform agricultural labor that is of a temporary or seasonal nature. The employer must file an application with the DOL, showing that there is not enough U.S. workers who are qualified, willing and able and that the employment of aliens will not affect the job chances of a U.S. worker.
H-2B Temporary Labor Certification for Skilled/Unskilled Workers
Under this classification, employers may hire certain skilled or unskilled alien workers (housekeeper, stable attendant, sports instructor, etc.) for a temporary period of one year, which may be extended, to a maximum of three years. Although this labor certification process is very similar to the one for permanent residence applications, it is not so extensive and time consuming.
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The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between Jethmalani & Nallaseth PLLC and the viewer.