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LABOR CERTIFICATION
In order to apply for Labor Certification (LC), an applicant must obtain an employer
to sponsor him/her through an offer of employment. The LC process consists of
three phases leading to permanent residency. First, the employer must obtain a
Labor Certification from the Department of Labor (DOL). Next, an immigrant visa
petition is filed with the U.S. Citizenship and Immigration Services (USCIS) based
on the DOL Labor Certification. Finally, the applicant either applies for adjustment
of status from non-immigrant to permanent resident here in the U.S., or obtains
an immigrant visa at an American Consulate in the home country.
The LC process requires that the sponsoring employer to prove that:
- There are not sufficient United States workers who are able, willing,
qualified and available to fill the position offered; and
- The employment of the applicant will not adversely affect the wages and
working conditions of the U.S. workers similarly employed.
To accomplish
this, effective March 28, 2005, with the passage of Program Electronic Review
Management (PERM), the following steps must be followed:
| Step 1: |
Obtain a Prevailing Wage Determination
from the State Workforce Agency. The employer must be able to certify that
the offered wage (the offered wage must be guaranteed and can not be based
on commissions, bonuses or other incentives, unless the Employer guarantees
a wage paid on a weekly, bi-weekly, or monthly basis) will equal or exceed
the prevailing wage. This step is mandatory.
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| Step 2: |
The Employer must place a Job Order with
the State Workforce Agency (SWA) serving the area of intended employment
for a period of 30 days. A listing of SWAs and their contact information
can be found at: http://workforcesecurity.doleta.gov/map.asp.
This step is mandatory.
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| Step 3: |
The Employer must give Notice of the filing of
the LC to the bargaining representative of the Employer’s employees
or, if no bargaining representative exists, by posted notice to the Employer’s
employees at the facility or location of the employment. The notice must
be posted for 10 consecutive business days and must be clearly visible and
unobstructed while posted and must be posted in conspicuous places where
the Employer’s U.S. workers can readily read the posted notice on
their way to and from their place of employment. In addition, the Employer
must publish the posted notice in any and all in-house media, whether electronic
or printed, in accordance with the normal procedures used for the recruitment
of similar positions in the employer’s organization. This step
is mandatory.
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| Step 4: |
The Employer must place Two Print Advertisements
on two different Sundays in a newspaper of general circulation in the
area of intended employment, at least 30 days, but no more than 180 days,
before the filing of the LC. If the area of intended employment is located
in a rural area that does not have a newspaper with a Sunday edition, the
Employer may use the edition with the widest circulation in the area of
intended employment. This step is mandatory.
The advertisements must include the following: the name of the Employer;
a description of the position; the geographic area of employment; instructions
for applicants to send resumes.
In addition, if the LC application is for a Professional position (i.e.,
position for which the attainment of a bachelor’s or higher degree
is a usual educational requirement), the Employer must select three additional
steps from the alternatives listed below:
- Copies of advertisements
on the Employer’s web site, documented by providing dated copies of
pages from the site that advertise the occupation involved in the application;
- Recruitment at job fairs, documented by brochures advertising the
fair and newspaper advertisements in which the Employer is named as a participant
in the job fair;
- Employee referral programs with incentives,
documented by providing dated copies of Employer notices or memoranda advertising
the program and specifying the incentives offered;
- On-campus
recruiting, documented by providing copies of the notification issued or
posted by the college’s or university’s placement office naming
the Employer and the date it conducted interviews for employment in the
occupation;
- Job search web site other than the Employer’s,
documented by providing dated copies of pages from one or more website(s)
that advertise the occupation involved in the application. Copies of web
pages generated in conjunction with a newspaper or journal advertisement
can serve as documentation of the use of a web site other than the Employer’s;
- Listings with private employment firms, documented by providing
documentation sufficient to demonstrate that recruitment has been conducted
by a private firm for the occupation for which certification is sought.
For example, documentation might consist of copies of contracts between
the Employer and the private employment firm and copies of advertisements
placed by the private employment firm for the occupation involved in the
application;
- Radio and television ads, documented by providing
a copy of the Employer’s text of the Employer’s advertisement
along with a written confirmation from the radio or television station stating
when the advertisement was aired;
- Campus placement offices,
documented by providing a copy of the Employer’s notice of the job
opportunity provided to the campus placement office;
- Advertisements
with trade or professional organizations, documented by providing copies
of pages of newsletters or trade journals containing advertisements for
the occupation involved in the application; and/or
- Advertisements
with local and ethnic newspapers, documented by providing a copy of the
page in the newspaper that contains the Employer’s advertisement.
Only one of the above-mentioned additional steps may take place within 30
days of the filing of the application. None of the above-mentioned steps
may have taken place more than 180 days prior to filing the LC. |
Upon satisfactory completion of the above steps, the PERM application may be filed
online or by mail, using Form 9089, Application for Permanent Employment Certification.
It is projected that cases filed under PERM will be processed by the DOL in 45-60
days.
Some applications will be selected for an audit, at which time the DOL will
request documentation of the recruitment efforts from the employer. An employer
will have 30 days to respond to this audit notice.
LC applications that have already been filed under the old regulations may
be converted to the PERM type of processing and will be allowed to keep their
original filing date so long as stringent standards are met, including the requirement
that the job opportunity with respect to the PERM application is identical to
the original LC application.
Once the DOL has completed processing, it will certify an application, deny
an application or order supervised recruitment. Upon certification of the LC
by the DOL, Form I-140 will be used to petition the USCIS center with jurisdiction
over the employment location to have an immigrant visa made available to the
applicant. Securing the certification from the DOL is a prerequisite to filing
Form I-140. At the time of filing Form I-140, the sponsoring employer must show
the financial capacity to pay the proffered salary. To prove this, the USCIS
may solicit evidence that the sponsoring employer had the ability to pay from
the date the LC was filed. This evidence may include: (1) a copy of the sponsoring
employer’s most recent corporate income tax return (with all schedules
and attachments); (2) a notarized letter from the financial officer confirming
the sponsoring employer’s financial ability to pay (applicable only to
companies with 100 or more employees); or (3) an annual report, with independently
audited financial reports. Upon approval, the applicant will be eligible for
permanent residency.
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