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.

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 letter.

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

In rare 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 Minimum Requirements

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 training.

5. The 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 certification").

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 applicants.

Initial Steps - Obtaining Experience Letters

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

PERM applications 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 wrong.

  Required Recruitment for Nonprofessional Positions

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.

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 three of the following types of additional recruitment: