III. LABOR CERTIFICATION
For most employees, labor certification will be a prerequisite for obtaining employment‑based permanent residence. The Immigration & Nationality Act requires that any foreign national who seeks to enter the U.S. to perform skilled or unskilled labor is not admissible unless the U.S. Secretary of Labor certifies that there are not sufficient U.S. workers available for the position, and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The labor certification program for the permanent employment of aliens in the U.S. is administered by the Dept of Labor’s Employment & Training Administration (www.doleta.gov).
How does it work? The labor certification process involves a test of the labor market to ensure that the employer is not overlooking minimally qualified U.S. workers for the position. The employer must perform certain recruitment steps, evaluate each applicant’s background, and determine whether any are qualified for the position. Upon conclusion of the recruitment activities, the employer must prepare a recruitment report and file an Application for Permanent Employment Certification (ETA Form 9089) with one of the ETA’s National Processing Centers. In order to ensure that U.S. workers will not be adversely affected by the foreign worker’s employment, the employer must offer a salary that meets at least the prevailing wage as determined by the state’s workforce agency (e.g., the Texas Workforce Commission). The state agencies will typically rely upon the Service Contract Act (SCA) and Occupational Employment Statistics (OES) surveys found at www.flcdatacenter.com. Employers may also submit private surveys for consideration, but there are stringent criteria governing how the survey was conducted, its sampling size, and how the median or mean wage was calculated.
Who must be considered? The employer must consider any U.S. workers who apply for the position, but does not need to consider non-U.S. workers (e.g., F-1 students and H-1B temporary workers). The employer must determine the minimum job requirements for education and experience, but may not tailor these job requirements to the foreign worker’s background, nor include any unduly restrictive job requirements or duties in the job description. The ETA’s Certifying Officer will utilize the O*NET (www.onetcenter.org) to evaluate and determine if the employer’s stated job requirements and duties are normal to the occupation involved. The O*NET is based upon the Standard Occupational Classification (SOC) system used by Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data. As a general rule, the employer may not include as a requirement any experience which the foreign worker has gained in the position with the firm, nor require knowledge or skills that could only be obtained in-house with the firm’s products or services. Any special requirements, such as a foreign language, must be thoroughly documented as business necessity. This labor market test is structured to determine if there are any minimally qualified candidates available for the position—it is not relevant to the Certifying Officer that the incumbent foreign worker is the best qualified of the candidates. Hence U.S. candidates may be rejected for only lawful job-related reasons, i.e., they do not meet the stated minimum education/experience requirements, or it is clear from their backgrounds that they would not be able to perform the job duties. Keep in mind that the Certifying Officer will consider an applicant qualified if they could learn the necessary job skills within a reasonable period of on-the-job training.
What must be done under PERM? PERM stands for Program Electronic Review Management system. After conducting the required recruitment and evaluating the candidates, the employer will submit electronically the ETA9089 application to the National Processing Center. On the application the employer will attest to the job requirements, the recruitment steps, the prevailing wage, and that no qualified candidates could be found. The application will be reviewed within 60 days and a determination made to either conduct an audit or to certify the employer’s application. If an audit is required, then the employer must submit the ads, postings, resumes, and recruitment report to the Certifying Officer within 30 days. The Certifying Officer will conduct random audits to ensure the integrity of the program. Under PERM, the employer will post a notice on-site for 10 consecutive business days, and conduct six recruitment steps. These steps will involve the following: (1) Job ad in Sunday newspaper classifieds,(2) Second job ad in Sunday paper or in an appropriate professional journal, and(3) Job order with the state workforce agency for thirty days. The employer must select three additional recruitment steps from the alternatives listed below:a. Job Fairsb. Employer’s Web Sitec. Job Search Web Site (other than employer’s)d. On-Campus Recruitinge. Trade or Professional Organizationsf. Private Employment Firmsg. Employee Referral Program with Incentivesh. Campus Placement Officesi. Local and Ethnic Newspapersj. Radio and Television Ads The ad or posting must contain the company name, direct applicants to report or send resumes to the employer, provide enough detail to adequately apprise the potential applicants of the job opportunity, and indicate the area of employment if not apparent from the employer’s address. Upon conclusion of the recruitment steps, the employer will review the resumes, conduct any interviews if necessary to better ascertain a candidate’s qualifications, and prepare a recruitment report summarizing the results. The recruitment report will describe the recruitment steps undertaken and the results achieved, the number of hires (if any) and the number of applicants rejected—categorized by the lawful job related reasons for such rejections. In the event of an audit, the Certifying Officer may request the U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected. An approved labor certification is valid indefinitely, however, it is valid only for the specific job opportunity and for the area of intended employment stated on the application. Note that at anytime the ETA may revoke the labor certification if they discover that there has been fraud or willful misrepresentation in the process.
U.S. Immigration Laws