PERM Labor Certification
By James A. Bach*
A labor certification ordinarily is the
first step in obtaining permanent residence status based on
employment. Essentially, it is a determination
by the Department of Labor ("DOL") that there is a shortage
of U.S. workers who are available for the job held by the
applicant. This determination is based on
recruitment (advertising for U.S. workers). In addition to
ensuring there is a shortage of qualified U.S. workers, DOL
is also responsible for determining that the salary offered
is the "prevailing wage," and is high enough so that it does
not depress the wages of similarly employed U.S. workers.
Overview of PERM Procedure
Labor certifications have been
around for many decades, with the latest major overhaul (called "PERM") established in 2004. PERM requires employers to conduct recruitment,
without government supervision,
before filing the
labor certification application. The employer must prove
that there are no qualified applicants (proving that the
sponsored employee is the best qualified is not enough).
If there are no qualified US
workers who respond to the recruitment, the PERM application
can be filed online with the DOL. The application 1)
describes the job that forms the basis of the application
(incuding job title, job duties, salary, and minimum
requirements), 2) summarizes the recruitment conducted, and
3) provides detailed information about the emnployee's
education and experience.
Initial processing of the PERM
application typically takes 7 months or so, after which the
DOL will either approved the application or issue an audit
In the case
of an audit, DOL will request 1) evidence that the
recruitment was conducted as claimed, 2) a copy of
the résumés received in response to the recruitment, and 3) an
explanation as to why the applicants were not hired. Often
DOL will also requires signed statements from both the
employer and the employee that the employer paid all of the
costs of the PERM case and will not seek reimbursement from
the employee. An audit can add a year or more to the process
cases, the DOL may also require "supervised
recruitment," a second round of recruitment in which
applicants are directed to send résumés directly to the DOL
(which will then forward the résumés to the employer for
interviews and evaluation). Supervised recruitment can add
more than nine months to the process. However, the
DOL approves most cases without an
audit or supervised recruitment.
Once the labor certification application
is approved, an immigrant visa petition (I-140) must be
filed with U.S. Citizenship and Immigration Services (USCIS)
within six months. If the I-140 is not timely filed,
the labor certification is automatically revoked.
An application for adjustment of status
(I-485) can be filed at the same time as the I-140 if the
applicant's priority date is current (see related articles
on priority dates). Otherwise, the I-140 must be
submitted alone, and the applicant must wait until his
or her priority date is current before filing the I-485.
Initial Steps - Defining the Job and
The first step in the labor
certification process is
to describe the job duties,
including details about any travel requirements. We must
also define the minimum job requirements, usually education,
experience, and specialized technologies or
skills. This job description and list of minimum job
requirements will provide a standard for determining whether
US applicants are qualified for the job, and for determining
the salary that must be paid.
The DOL can deny a PERM application
if it concludes that the job requirements are unreasonable
or are "tailored" to the immigrant's background. Since the
purpose of the PERM process is to protect U.S. workers, the
employer is limited in the job requirements that it can
include in the application. Considerations in stating the
minimum job requirements include the following:
1. The requirements must be the
company's minimum requirements for the position.
2. Employer preferences cannot be
used, only minimum requirements.
3. The requirements must be limited
to experience and expertise that is essential to
proficiently perform the job duties.
4. The requirements cannot include skills that
can be learned through a short period of on-the-job
requirements cannot be include experience or expertise that
the sponsored employee gained in his or her present
employment. There is an exception to this rule if the
employee gained the experience in a significantly different
jo with the same employer.
6. The employer cannot have a
long list of technical requirements (because a qualified
candidate who meets the basic education and experience
requirements may not know each and every technology).
7. However, the requirements should
include a reasonably detailed skill set, so there is a sufficient
basis for rejecting candidates who would be unable to
proficiently perform the job duties.
8. Requirements cannot be subjective
(such as "strong writing skills"), but instead must be
objective standards that can easily be applied to
prospective applicants (e.g., "must have a Cisco CCIE
9. The focus is always on the
company's minimum requirements, not the sponsored employee's
background. The requirements cannot be "tailored" to
the employee's background.
10. There should be as few
requirements as possible to meet these goals. If the list is
too long, the DOL may conclude that the requirements were
devised to exclude qualified Americans (and might deny or delay
the application on that basis).
As you can see, it is a challenging
task to adequately define the required skill set, education,
and experience for the position, so that the
requirements are reasonable in relationship to the job
duties, and provide a basis for rejecting unqualified
Initial Steps - Obtaining Experience
For the employee, the most critical
and demanding part of the case is obtaining proof that he or she
has the required experience and expertise. Gathering that
evidence must be done at the very beginning of the case, and the
case cannot proceed without that evidence.
USCIS guidelines provide that the
letters must be on the previous employer's letterhead, and
signed by a responsible manager of the company (for example,
a supervisor, technical manager or an HR representative).
The letter should state the dates the employment started and
ended. It should state the job title, describe the job
duties, and list all of the skills and technologies used
during the employment. If there were different job titles
held during the employment, the dates, job descriptions, and
required skills should be included for each job title.
The best way to get experience
letters is for the employee to write them, and then send the
draft letters to the former employers for final revisions,
printing on company letterhead, and signing.
Occasionally the prior employer will
refuse to provide an employment letter (or may provide a
short letter that states the job title and dates, but does
not describe the skills used). In that case a former
supervisor or even a co-worker can write a letter. However,
a letter that is not on company letterhead will be
acceptable to the USCIS only if evidence is also submitted
that it is not possible to get a letter on company
letterhead. For example, there may be evidence from online
sources that show that the company has gone out of business,
or an email from the company indicating its refusal to
provide the letter because of company policies.
Prevailing Wage Determination
must be filed with a Prevailing Wage Determination (PWD), a
determination by the DOL of the average (weighted median)
salary for the job offered and minimum job requirements, and
at the location the work is to be performed. The
employer must offer at least the prevailing wage (as
indicated by the PWD) on the PERM application.
The PWD request is
submitted online to the DOL with the job description,
including information about any managerial duties and travel
requirements (both of which can increase the prevailing
wage). Other factors that can affect the prevailing wage are
the education and experience requirement, and special
requirements such as certifications or licenses.
It takes almost
three months for the DOL to issue a PWD, and generally the
case cannot proceed until it is obtained.
Often the prevailing
wage provided by DOL is higher than the salary the employer is willing
to pay. In that case, the employer has several opportunities
to contest the PWD. One option is to submit a second PWD
request with a private salary survey that indicates that the
prevailing wage should be lower than the amount based on
DOL's survey. Another option is to ask for reconsideration
of the initial PWD, for example, on the basis that DOL chose
the wrong occupational category in determining the salary.
It can take another three months to obtain reconsideration,
and usually DOL refuses to change its initial PWD.
It is also possible to ask appeal
the PWD (click here for an example of
a PWD appeal). The appeal process can take a year or more,
so it is usually a last resort, to be used only when the
case cannot move forward without a lower PWD and when there
is a good chance of demonstrating that the DOL decision is
Required Recruitment for Nonprofessional
Labor certification recruitment will be
easiest for jobs that do not require a college degree (for
example, carpenters or cooks). In those cases, required
minimum recruitment consists only of a 30-day job order at
the state job office (in California,
http://www.caljobs.ca.gov) and an advertisement in the
major metropolitan newspaper on two different Sundays.
Required Recruitment for Professional
For those jobs that require a college
degree, the required recruitment is more extensive. Like the
recruitment for the non-professional positions, mandatory
recruitment includes a 30-day job order and two Sunday
newspaper ads (although in some cases an ad in a
professional journal can take the place of one of the Sunday
ads). In addition, the employer must conduct
of the following types of additional recruitment: