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The Grant or Denial of the PERM Labor Certification Application

1. It Is Very Importance to Double Check All Information on the ETA Form 9089

When alien workers apply for a U.S. Green Card through the employment in the United States, in most cases, they rely on the U.S. employer's job offer to successfully complete the PERM Labor Certification. The PERM Labor Certification process requires the U.S. employer to conduct recruitment, place advertisements for the alien worker’s job position, and submit the ETA Form 9089 to the U.S. Department of Labor (DOL) and attest that no qualified, willing U.S. workers are available for the offered position.

After receiving the U.S. employer's submitted ETA Form 9089, the U.S. Department of Labor will either approve the Labor Certification application, or simply deny the Labor Certification application. After the DOL approves the application, the U.S. employer can complete the second step in the Green Card application process, which is to fill an immigration visa petition on Form I-140 with U.S. Citizenship and Immigration Services (USCIS).

The ETA Form 9089 is submitted online by U.S. employer on the U.S. Department of Labor's website. The most common mistake that U.S. employers make when completing the ETA Form 9089 is not double checking that every information they have supplied in the form is correct.  After the form submission online, to correct any errors on the form, the only solution is to withdraw the application and refile it.

The employers are allowed to send corrected ETA Form 9089s to the DOL by mail. Also, sometimes, the solution of withdrawing and refiling is not possible online, because allowed advertisements time period have expired by the time the U.S. employer notices the mistake.

The U.S. Department of Labor may deny an ETA Form 9089 for trivial errors, such as spelling mistakes in the employer’s name or the alien worker’s home address. In this situation, the employer needs to restart the process again which may take long time. Therefore it is very importance that U.S. employers double check all information on the ETA Form 9089.

2. The Certifying Officer's Determination

The DOL Certifying Officer makes a determination either to grant or deny the labor certification application on the basis of whether or not:

  • the employer has met the requirements; and

  • there is a worker in the United States who is able, willing, qualified, and available for and at the place of the job opportunity.

The Certifying Officer must consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation, as customarily performed by other U.S. workers similarly employed. A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. If the job involves a job opportunity as a college or university teacher, the U.S. worker must be at least as qualified as the alien.

The employment of the alien should not have an adverse effect upon the wages and working conditions of U.S. workers similarly employed. In making this determination, the Certifying Officer considers such things as: 

  • labor market information, 

  • the special circumstances of the industry, 

  • organization and occupation, 

  • the prevailing wage in the area of intended employment, 

  • and prevailing working conditions, such as hours, in the occupation.

The Certifying Officer will notify the employer in writing of the labor certification determination. If a labor certification is granted, the Certifying Officer will send the certified application and complete a Final Determination Form to the employer, indicating the employer may file all the documents with the appropriate USCIS Service Center.

3. The Pitfalls and Detours in Labor Certification

As the Green Card sponsor, the employer must advertise for the foreign worker prospective job and then complete the ETA Form 9089. The ETA Form 9089 contains information regarding the employer, the foreign worker, and the prospective job duties and requirements. The employer electronically files this form with the U.S. Department of Labor (DOL). The DOL can either approve or reject the ETA Form 9089. 

It is helpful to outline a few of the reasons why the DOL may reject it. Among the multitude of possible reasons is mere typos, such as errors in the employer name or address. The DOL may also reject the ETA Form 9089 if it feels that the job duties are not typical of the job, if the employer listed atypical job requirements, such as knowledge of a foreign language, or if the employer listed job requirements that exceed what the position actually requires, such as requiring a Ph.D. degree for a general position.

The employment-based immigration process can be one of the fastest routes to obtaining a Green Card and permanent residence. However, the Labor Certification process, essential to the majority of employment-based green card applications, is fraught with pitfalls that can potentially delay or even derail an applicant from the road to permanent residence. The law prescribes specific steps an employer must follow for the Labor Certification test. As you might guess, there are quite a few pitfalls and detours that can happen in this process. 

4. Why a Labor Certification Is Denied 

1) Incomplete Recruitment Efforts: The market test is probably the most time and effort intensive of the required steps for a Labor Certification. The law requires that an employer run certain types of help wanted or open position advertisements, declaring to the public that the job through which the employer hopes to sponsor the foreign national is available. All of this advertising must be completed within the 180-day period before the Labor Certification is filed and must also be finished 30 days prior to the Labor Certification filing.

At minimum, the sponsoring employer must advertise the position using the following methods: 1) for 30 days through the local State Workforce Agency; and 2) in two, consecutive Sunday newspaper advertisements in the newspaper generally circulated in the employer's metropolitan area. The employer must supplement these two methods by three additional forms of recruiting, also prescribed by law, including: job fairs, career services offices on campuses, employee referral programs, or third-party job search websites. Further, the content and placement of ads must be clear enough that the general public can reasonably find and understand the job offer. In other words, general job applicants must have a fair shot at finding and responding to the ad.

2) The Job Description and Business Necessity: The law requires that a sponsoring employer accurately describe the duties, educational requirements, experiential requirements, and skill requirements for the sponsored position. This means that an employer cannot set the requirements for the position impossibly high solely to discourage persons others than the sponsored foreign national from applying for the job. This also means that the employer must not tailor the job duties and requirements so that they match only the sponsored foreign national's credentials.

The law specifically says that any educational, experiential, or skill requirements for a job must be reasonably necessary to fulfill the job's duties and responsibilities. This Business Necessity concept can, and often does, block Labor Certifications from being approved. A sponsoring employer must be careful to both accurately describe the duties and responsibilities of a job and set reasonable requirements and prerequisites for that job. The employer should consider industry standards and the general hiring practices of companies and businesses in the same fields. The employer should also look at any similar positions already with the employer's own business or with other similar organizations and consider what those positions require.

3) Prevailing Wages and Ability to Pay: The law requires that an employer sponsoring a foreign national employee pay the employee at least the prevailing wage rate for the particular job. The employer must also be able to prove that he or she can afford to pay the employee at the prevailing wage. The purpose of the law is twofold: to prevent foreign national workers from being exploited through lower wages, and to prevent the depression of wages in the general job market.

The prevailing wage is the average wage paid to persons employed in similar positions, requiring similar educational, experiential, and skill requirements, in the local geographic area. The U.S. Department of Labor and state labor agencies regularly collect wage information from the wide variety of careers and fields. A number of private wage survey firms also collect and compile this wage data.

4) Job Availability and Layoffs: The law says that if an employer lays off or furloughs employees, that employer cannot simultaneously or suddenly sponsor a foreign national for the same jobs or positions. In the current economic climate and with many employers looking at their bottom lines, layoffs can be a problematic hurdle to Labor Certifications.

For example, Employer X wishes to sponsor foreign national A for a green card through a computer engineer position. After going through the market test and advertising process described earlier, Employer X is ready to file the Labor Certification application. However, Employer X decides to let go two other computer engineers during this time, reasoning that their salaries were too high. U.S. immigration and the U.S. Department of Labor would look very negatively at Employer X here and would most likely deny the Labor Cert. Indeed, both agencies would likely think that Employer X was attempting to exploit foreign labor at the expense of U.S. citizens and permanent residents.

5. Request For Evidene from USCIS for Employer's Ability to Pay

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers. To comply with the statute, the U.S. Department of Labor's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. U.S. employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs.

The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B visa program requires the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.

The employer's "ability to pay" is a requirement for the employer filing an immigrant petition. The petition should  demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an immigration petition, the USCIS requires proof of the company's ability to pay the offered wage, starting with the labor certification filing date.

USCIS will deny the petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the approval if there is new evidence. The following issues may indicate the employer's failure to establish the ability to pay the offered wages:

1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.

6. After the PERM Application Approval, How Long the I-140 Petition Process Will Likely Take

After the U.S. Department of Labor (DOL) approves the PERM Labor Certification application, the U.S. employer can file an Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-140 petition should includes the original approved PERM application in which the U.S. employer and the alien beneficiary worker must sign it. 

The Form I-140 petition should also include the evidence of the U.S. employer’s ability to pay the alien worker’s salary, and documents confirming that the alien beneficiary is qualified for the position, such as a copy of the alien worker’s educational degrees. The approved PERM Labor Certification application is only valid for a certain period of time, therefore the Form I-140 petition must be filed within this validity period. Otherwise the PERM Labor Certification application will expire, and the employer must start over again.

Generally, USCIS may take at least four months for I-140 decisions, and it can take USCIS much longer to adjudicate the Form I-140 petitions. Also, there is an expediting option available, Form I-140 Premium Service, for Form I-140 petition. The employer can pay an extra $1000 fee and request premium processing within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action which would be an approval. Alternatively, an USCIS officer could issue a Request for Further Evidence (RFE), or a Notice of Intent to Deny (NOID). For the case of RFE, USCIS will make a decision within 15 days of receipt of the response.

7. If the Labor Certification Application is Denied

If the labor certification application is denied, the Final Determination Form will:

  • state the reasons for the determination;

  • advise that failure to request review within 30 days of the date of the determination constitutes a failure to exhaust administrative remedies;

  • advise that if a request for review is not made within 30 days of the date of the determination, the denial shall become the final determination;

  • advise that if an application for a labor certification is denied and a request for review is not made, a new application may be filed at any time; and

  • advise that a new application in the same occupation for the same alien can not be filed, while a request for review is pending with the Board of Alien Labor Certification Appeals.

If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it is appropriate for other reasons, the employer may be required to conduct supervised recruitment in future filings of labor certification applications for up to two years from the date of the Final Determination.

The employer may request reconsideration within 30 days from the date of issuance of the denial. The request for reconsideration may not include evidence not previously submitted. The Certifying Officer may reconsider the determination or treat it as a request for review.

8. The Appeals Review of Denied Labor Certification Application

If a labor certification is denied or revoked, a request for review of the denial or revocation may be made to the Board of Alien Labor Certification Appeals by the employer by making a request for such an administrative review. The request for review:

  • will be sent to the Certifying Officer who denied the application within 30 days of the date of the determination; and it

  • will clearly identify the particular labor certification determination for which review is sought.

Upon the receipt of a request for review, the Certifying Officer will assemble an indexed appeal file. The appeal file will be in chronological order, and have the index on top followed by the most recent document, and have consecutively numbered pages. The appeal file will contain the request for review, the complete application file, and copies of all the written material, such as pertinent parts and pages of surveys or reports upon which the denial was based.

The Certifying Officer will send the appeal file to the Board of Alien Labor Certification Appeals, Office of Administrative Law Judges, located in Washington, DC.

9. Filing Another ETA Form 9089 Application after the First One Was Rejected

The Department of Labor (DOL) may take a year to review the Request for Reconsideration. In the meantime, your employer can file another ETA Form 9089 for you. However, this second ETA Form 9089 can not be for the same position as the position that is listed on the ETA Form 9089 that is undergoing review.

For example, let’s say your employer filed an ETA Form 9089 for you for the position of Financial Researcher. The DOL rejected that ETA Form 9089, and your employer appealed the rejection. While this first ETA Form 9089 appeal is pending, your employer can not file another one for you for the same position. Your employer would have to use a different position such as Manager, or Financial Analyst.

Additionally, if you are nearing the sixth year of your time on an H-1B visa, you may be able to extend your H-1B status beyond the sixth year if your ETA Form 9089 was rejected and is now pending appeal. To be eligible for this extension, your employer must have filed the ETA Form 9089 sometime before you began your sixth year of H-1B status.

10. Upgrade Green Card Application Case from EB3 to EB2 Category

There are some alien applicants who are interested in the possibility of what is referred to as "upgrading" their Green Card application EB3 cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category.

The observation of the monthly U.S. Department of State's visa bulletin reveals a major difference between the EB2 and EB3 immigrant categories, for some countries like India, Mexico, Philippines, and China. For example, in recent years, EB2 India has fluctuated between 2004 and 2010, EB3 India has slowly advanced for the same period, from 2002 to 2003. Thus, the EB2 India's visa movement is faster than EB3.

For many EB3 visa applicants, the immigrant visa waiting time is unavoidable. However, some employment-based immigrant visa applicants may qualify to change to EB2 visa category because of the following reasons:

    * having obtained advanced degrees,
    * having additional job experience,
    * having new job offers that satisfy the requirements for EB2 filings;
    * an increase in the complexity and sophistication of one's job duties and a commensurate increase in salary.

The change to EB2 immigrant visa category does not actually "upgrade" the previously filed Labor Certification (LC) and Form I-140 petition. This EB3 to EB2 "upgrade" process requires the filing of a new Labor Certification and related Form I-140 petition, requesting EB2 classification.

Using the EB2 category, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence with form I-485, the strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved Form I-140 petition.


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The PERM Labor Certification Application
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