The Requirements of
1. The Recruitment Requirement of the PERM Labor Certification
Labor certification is a procedure by which many foreign nationals seek full time, permanent employment and ultimately permanent residency in the United States. Under labor certification, an employer is required to apply to the DOL for permission to hire a foreign national to work in a specified position for which there are no qualified U.S. workers available. Employers are required to search the labor market for qualified U.S. workers for a given position.
However, the DOL will not monitor the recruitment effort of an employer after an application is filed. The regulations require employers to post notification, including using any and all normal means of in-house media typically used to alert employees of position openings within the company. The notice period must be between 30 and 180 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage.
The employer must place a job order with the State Workforce Agencies (SWA) for a period of 30 days. DOL requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order. Job orders are placed through the State Workforce Agencies. SWAs are not required to have a uniform job order form, and the employer should print out any documentation that proves the job order was placed for the required 30 day period.
The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both advertisements must be placed more than 30 days but not more than 180 days before filing. The advertisement must list the name of the employer, the geographic area of employment, and a description of the vacancy specific enough to apprise U.S. workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the advertisement.
2. The Requirements for PERM Labor Certification Advertisement
The PERM Labor Certification process requires a test of the job market of the United States. An U.S. employer offering a job position must undergo an recruitment process, which includes:
1) two Sunday newspapers of general circulation for the area of intended employment;
2) a State Workforce Agency (SWA) posting;
3) an internal Notice of Filing;
4) three additional forms of recruitment.
PERM Labor Certification advertisements for professional positions should name the employer, provide directions for sending resumes, and provide a description of the position specific enough to apprise U.S. workers of the job opportunity.
The advertisements should also provide the geographic area for the position with specificity, and should not include job requirements that exceed the actual requirements. While these specifications may seem straightforward, any error in the advertisement may result in a denial of the PERM Labor Certification application.
3. The Advertisements in Newspapers or Professional Journals
Most positions require advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. In those areas with multiple newspapers of general circulation, the employer is required to utilize the one that is most appropriate for the occupation and the job seekers most likely to apply for the position. These newspaper advertisements may be documented by tear sheets. Tear sheets are pages provided by the newspaper that prove that the advertisement was placed. A tear sheet is typically a copy of the exact page of the publication in which the advertisement ran. If the newspaper does not provide tear sheets, the employer may also make an exact copy of the page in which the advertisement ran.
If the job is in a rural area where there is no Sunday edition of the newspaper, the employer is permitted to use the newspaper in the area with the widest circulation in the area of intended employment. In addition to keeping the tear sheet, the employer may wish to keep proof that there are no appropriate papers with Sunday editions and that the newspaper selected does have the widest circulation.
If the job is for a professional position that requires an advanced degree and experience, the second advertisement may be in a professional journal that is most likely to bring responses from able, willing, qualified, available U.S. workers. Proof that a journal advertisement ran may be a tear sheet or exact copy of the page in the journal in which the advertisement appeared. All proof of print advertisements should include the name of the publication in which the advertisement appeared. It should also include the exact date the advertisement appeared.
4. The Professional Recruitment Requirements
The PERM regulations require that employers conduct at least three out of a possible ten additional forms of recruitment if the position the employer seeks to fill with the labor certification is for a professional position. The DOL has indicated that employers cannot generally use the same type of recruitment twice to satisfy the 3-out-of-10 requirement. If an employer is unsure whether a position is a professional position or a nonprofessional position, it is generally a good idea to assume that it is a professional position and conduct the additional forms of recruitment.
1) Job Fairs: Job fairs are arranged by a variety of organizations. If an employer is participating in a job fair, it should be a job fair that it is likely applicants for the job offered will attend. For example, if the employer is seeking to fill a computer professional job, the employer generally should not assume that participating in a health care professional job fair would be adequate to satisfy this requirement.
2) Employer Website: If the employer usually advertises open positions on its website, this is an excellent, cost-efficient tool available for recruitment. The employer should print a copy of the website advertisement, including a date stamp, on the first day of advertising, and another copy on the last day of advertising the position.
3) Other Job-Search Web Sites: As with the employer website evidence, the employer should print a copy of the website advertisement, with a date stamp, on the first day of advertising, and another copy at least on the last day of advertising the position. If the newspaper that runs the Sunday advertisement provides a website advertisement in conjunction with the newspaper advertisement, as some do, it is permissible to use that website advertisement as documentation of job search website recruitment.
4) On-Campus Recruiting: The employer can prove on-campus recruitment efforts by providing copies of the notification issued or posted by a college or university placement office. The notice should include the employer name and the dates interviews are conducted.
5) Trade or Professional Organizations: The employer may document this method of recruitment with a copy of the pages of the newsletters or trade journals carrying the advertisements. Again, the trade or professional organization should be related to the occupation in some logical way.
6) Private Employment Firm: The employer should use documentation sufficient to demonstrate that recruitment has been conducted by a private firm. Evidence may include contracts between the employer and the employment firm and copies of the advertisements that the employment firm placed to attract potential, qualified job seekers.
7) Employer Referral Program with Incentives: Proof of in-house Employer Referral Program with incentives recruitment efforts may include dated copies of employer notices or memoranda that explain the program and specify the incentives offered. An incentive is a benefit or entitlement beyond those an employee typically receives from the employer.
8) Campus Placement Offices: The employer may document the use of Campus Placement Offices with a copy of the notice of the job opportunity offered, as it is provided to the campus placement office. Ideally, the campus placement office will confirm that it has made the notice available to its users.
9) Local and Ethnic Newspapers: Proof of a local or ethnic newspaper advertisement may be a tear sheet or other exact copy of the page in the newspaper in which the advertisement appeared.
10) Radio and Television Advertisements: The employer may prove this method of recruitment by providing a copy of the text used for the advertisement, along with a written confirmation from the radio or television station stating when the advertisement was aired.
5. PERM Labor Certification Notice Requirement for Posting 10 Consecutive Business Days6. The Supervised Recruitment for PERM Labor Certification
As part of the PERM labor certification process, the Department Of Labor (DOL) requires a sponsoring U.S. employer to post notification regarding the filing of a labor certification for ten (10) consecutive business days. The purpose is to notify employees of their employer's intention to file the labor certification application case.
The posting notice should containe all the language and information required by DOL regulations. The manner in which the notice is posted should also be correct. The posting is intended to provide a meaningful opportunity for U.S. workers to compete for the position and to assure that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of foreign nationals.
Sometimes, a question may be raised with regard to whether the requirement to post a notice for ten consecutive business days was met in a PERM labor certification case, such as whether Martin Luther King Day or Columbus Day should be counted as a business day. For the U.S. Department of Labor and the rest of the Federal Government, thay are holidays. But for many U.S. employers, thay are ordinary working days.
As a precaution, it is better for U.S. employer to post notices for an extra day, and not count federal holidays within the ten-day requirement. If the federal holiday was overlooked by U.S. employer when posting the PERM labor certification notice, then petitioner needs to make the arguments and give explainations pointing out relevant factual issues.
Due to the high rate of unemployment in the United States in the past years, U.S. Department of Labor (DOL) has suggested it will subject more Labor Certification (PERM) cases to "supervised recruitment." The Supervised recruitment is one of the tools DOL uses to protect the integrity of the PERM Labor Certification program. Thus, employers need to understand what supervised recruitment is, and prepare for additional recruitment steps and delays.
Under regulation 20 CFR656.21, if U.S. Department of Labor determines an employer substantially failed to produce required documentation, or the provided PERM application documentation was inadequate, or a material misrepresentation was made with respect to the PERM application, or if the Certifying Officer (CO) determines it appropriate for other reasons, the employer may be required to conduct supervised recruitment.
If an employer is required to undergo the supervised recruitment, the DOL will direct the PERM Labor Certification recruitment effort. This includes approval of the employer's advertisement text by a Certifying Officer prior to the employer's placement of the advertisements. The employer should arrange for the advertisements to run within the designated timeframe, using the forms of recruitment specified by the CO, such as one of the required advertisements ran online on Monster.com or Hotjobs.com.
7. How to File the Labor Certification PERM application with the ETA Form 9089
After the advertisements are complete, your employer should file the PERM application with the DOL using ETA Form 9089, if there is no qualified and willing U.S. workers applied for the job position.
Like with the prevailing wage request, your employer should file the ETA Form 9089 electronically at the DOL website at http://www.plc.doleta.gov. The ETA Form 9089 provides the DOL with information on the job opportunity, information on the employer’s recruitment process, and information on the foreign worker, such as:
* the worksite location,
* job duties,
* job requirements,
* where the employer placed the advertisements,
* advertisements dates,
* worker’s place of birth,
* worker’s education credentials,
* worker’s work experience.
After filing the ETA Form 9089, you should wait several months for the DOL to adjudicate the PERM. The DOL can approve the PERM, or deny the PERM, or audit the PERM.
If your PERM is audited, the DOL will ask your employer to provide additional evidence for the application. After your employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.
After receiving the approved PERM, your employer can move on to the next big step of the process, which is filing an I-140 visa petition on your behalf with U.S. Citizenship and Immigration Services.
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