Business Law Newsletter

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The Department of Labor's PERM System for Foreign Labor Certification

One avenue that allows an employer to hire a foreign worker to work permanently in the U.S. entails a “permanent labor certification” through the Federal Department of Labor (DOL). Before the employer can submit a petition for immigration to the U.S. Citizenship and Immigration Services (USCIS), a certification must be obtained from the DOL’s Employment Training Administration. By this, the DOL certifies to the USCIS that there are no qualified U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area where the employer is located.

Foreign Permanent Labor Certification

Formerly, the application for such certification was processed with the DOL in concert with a local “State Workforce Agency” (SWA). Basically, this process verified the qualification criteria for the certification, which includes:

• The employer must hire the foreign worker on a full-time basis.
• There must be a bona fide job opening.
• The job opening must conform to what is customarily required for work in the U.S. and may not be tailored to the foreign worker’s qualifications; the employer must document that the job opportunity has been and is being described without unduly restrictive job requirements, unless they arise from a business necessity.
• The employer must pay at least the prevailing wage for that occupation in that area.

The process used to entail filing an application with the applicable SWA, describing in detail the job duties, educational requirements, training, experience and other abilities that the applicant must possess. The SWA would complete a preliminary review of the application, notifying the applicant of potential problems and helping the employer develop advertisements for the position. The information gathered by the SWA would be forwarded to the DOL for ultimate decision.

The process could be quite cumbersome and lengthy, taking several years in states with more applications, e.g., New York, Texas and California. Applications were sometimes sent to a “backlog” center. To facilitate and shorten the process, on December 27, 2004, the DOL adopted long-promised regulations creating a “Program Electronic Review Management” system (PERM). These regulations, all 300 plus pages of them, became effective on March 28, 2005.

Process of Certification Under PERM

Pending application cases for certification may either be continued or converted over to the PERM system, without loss of the original filing date. New applications for foreign labor certification filed after March 28, 2005 must, however, comply with PERM. The PERM system is intended to provide a faster, automated electronic application process; it is expected that applications will be processed in 45-60 days instead of years. PERM also entails changes in recordkeeping and documentation requirements for the employer applicants. PERM has mandatory steps and strict requirements which include:

• Request from an SWA for a “prevailing wage determination” (PWD) for the area. The period of validity for the PWD determination may be 90 days to one year. The offered wage for the position must be at least 100% of the PWD; formerly it could be 95%. If the PWD is considered too high, employers have several options, including providing supplementary information or requesting a new PWD.
• Recruitment (through advertisements) by the employer applicant at least 30 and not more than 180 days prior to filing an application. The recruitment must include: two Sunday newspaper ads; a job order through the SWA; and, for professionals, at least three other specified forms of recruitment. Salary need not be stated in the ads, as previously required, but must equal or exceed PWD.
• Submission of an “Application for Permanent Employment Certification,” which no longer has to be filed with state authorities, and may be filed online with the DOL at its website. No documentation need be submitted with the application, but employers must maintain copies of ads, resumes, and other documents showing recruitment actually occurred (applications are subject to “audit”). A notice of filing must be posted in specified locations for ten consecutive days.
• Employer applicants are required to indicate whether they have conducted layoffs in the area of intended employment and for that particular, or any related, occupation within six months prior to filing the application. If there have been, the employer must notify its former employees of the opening and consider them for the position.
• A federal “certifying officer” will either certify or deny the application; SWA’s will no longer handle any permanent labor certification cases. Any notice of denial should include a list of deficiencies and the employer is entitled to appeal to a Board of Alien Certification Appeals within 30 days. Certification can be revoked if the certifying officer finds that it was “not justified.”

Special Requirements Exist for Certain Professions

Certain professions, including nurses, physical therapists, and those with exceptional skills and abilities in the arts and sciences, are referred to as “Schedule A” applications, and have different, more lenient, requirements. Special procedures also exist for foreign nationals employed in team sports.

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