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Re-engineered Permanent
Labor Certification Program
(PERM)
eta Employment And Training AdministrationUnited States Department Of Labor
Effective:Effective:March 28, 2005March 28, 2005
eta History and Background
A labor certification is required prior to A labor certification is required prior to petitioning USCIS for permanent residence petitioning USCIS for permanent residence (“green card”) for certain employment-based (“green card”) for certain employment-based immigrant visasimmigrant visas
DOL certifies:DOL certifies: not sufficient U.S. workersnot sufficient U.S. workers no adverse effect on U.S. workersno adverse effect on U.S. workers
Application certified or denied by DOLApplication certified or denied by DOL
eta History and Background (continued)
Previous process criticized as:Previous process criticized as: complexcomplex time consumingtime consuming resource intensiveresource intensive duplicativeduplicative
New system streamlines processNew system streamlines process
eta History and Background (continued)
NPRM on May 6, 2002NPRM on May 6, 2002
Approximately 200 commentsApproximately 200 comments
Approximately 1,100 pages of commentsApproximately 1,100 pages of comments
Final regulation responsive to public commentsFinal regulation responsive to public comments
Final rule published on December 27, 2004Final rule published on December 27, 2004
Regulation effective March 28, 2005Regulation effective March 28, 2005
eta Highlights of Re-engineered Program
Employers must conduct recruitment before filing applicationsEmployers must conduct recruitment before filing applications
SWAs provide prevailing wage determinations, but will no SWAs provide prevailing wage determinations, but will no longer accept or process permanent applications once the longer accept or process permanent applications once the regulation is effectiveregulation is effective
Employers have the option of web-based filingEmployers have the option of web-based filing
Must offer at least 100% of the prevailing wageMust offer at least 100% of the prevailing wage
Employer retains supporting documentation for audit purposes Employer retains supporting documentation for audit purposes for five (5) yearsfor five (5) years
Business necessity included in final ruleBusiness necessity included in final rule
eta General Instructions
Representation by agents or attorneys allowedRepresentation by agents or attorneys allowed
Filing options (ETA Form 9089):Filing options (ETA Form 9089): mail-in mail-in web-basedweb-based
No facsimile (fax) applicationsNo facsimile (fax) applications
Pin/Password process for e-filing Pin/Password process for e-filing
eta General Instructions (continued)
Applications will be processed in either the Applications will be processed in either the Chicago or Atlanta National Processing Chicago or Atlanta National Processing Center – based upon work stateCenter – based upon work state
Incomplete applications will not be accepted Incomplete applications will not be accepted or, in the case of paper applications, will be or, in the case of paper applications, will be denieddenied
eta Filing Date & Re-filing of Pending Cases
Date stamping of applications accepted for Date stamping of applications accepted for processingprocessing
Re-filing applications under the final ruleRe-filing applications under the final rulemust meet final rule recruitment requirementsmust meet final rule recruitment requirementsmust be identical applicationmust be identical applicationcurrent application must be withdrawncurrent application must be withdrawn
re-file is considered a withdrawalre-file is considered a withdrawalwithdrawal allowed prior to re-filing, must withdrawal allowed prior to re-filing, must re-file within 210 days re-file within 210 days
re-filed applications may take longer to re-filed applications may take longer to process than other ETA Form 9089s process than other ETA Form 9089s
eta Pre-filing Recruitment
Separate Professional and Nonprofessional Separate Professional and Nonprofessional occupation recruitment requirementsoccupation recruitment requirements
Professional occupations are listed in Appendix Professional occupations are listed in Appendix A to the PreambleA to the Preamble
All occupations not listed in Appendix A to the All occupations not listed in Appendix A to the Preamble are considered non-professional for Preamble are considered non-professional for purposes of this recruitmentpurposes of this recruitment
eta Pre-filing Recruitment (continued)
Placement of job order with SWA Placement of job order with SWA Two Sunday newspaper advertisements – Two Sunday newspaper advertisements –
professional journal optional in certain cases professional journal optional in certain cases
Additional recruitment steps for professional Additional recruitment steps for professional occupations occupations
eta Contents of Advertisements
Employer nameEmployer name
Wage rateWage rate (optional) (optional)
Description of vacancy and geographic Description of vacancy and geographic area of employmentarea of employment
eta Job Opportunity
Business necessity availableBusiness necessity available
No foreign language requirement, unless No foreign language requirement, unless justified by business necessityjustified by business necessity
Combination occupations permitted when Combination occupations permitted when justifiedjustified
Alternative experience requirements permittedAlternative experience requirements permitted
eta Job Opportunity (cont.)
Job requirements must represent Job requirements must represent employer’s actual minimum requirementsemployer’s actual minimum requirements
Alien’s background must satisfy actual Alien’s background must satisfy actual minimum requirementsminimum requirements
Alien’s qualifying experience cannot be Alien’s qualifying experience cannot be gained with the employer, except in limited gained with the employer, except in limited circumstancescircumstances
Definition of “employer” determined by EIN Definition of “employer” determined by EIN
eta Other Requirements
Notification to laid-off U.S. workers by Notification to laid-off U.S. workers by the employer applicantthe employer applicant
Prohibition against alien influence and Prohibition against alien influence and control over job opportunitycontrol over job opportunity
eta Recruitment Report
Recruitment steps undertakenRecruitment steps undertaken
Results achieved and lawful reasons for Results achieved and lawful reasons for rejection of U.S. workers,rejection of U.S. workers, as applicable as applicable
Maintain resumes/application materials Maintain resumes/application materials for documentation/audit purposesfor documentation/audit purposes (5 (5 years)years)
eta Schedule A Occupations
Physical therapistsPhysical therapists
Professional nursesProfessional nurses
Aliens of exceptional ability in the sciences or Aliens of exceptional ability in the sciences or artsarts
Performing artists of exceptional ability – Performing artists of exceptional ability – previously special handlingpreviously special handling
eta Other Occupations
Labor certification requirements for Labor certification requirements for sheepherders – direct to USCISsheepherders – direct to USCIS
Optional recruitment and documentation for Optional recruitment and documentation for college and university teachers – alternative college and university teachers – alternative recruitmentrecruitment
Live-in household domestic service workers – Live-in household domestic service workers – additional documentation requiredadditional documentation required
eta Bona Fides
Employer existenceEmployer existence
SponsorshipSponsorship
Publicly available databasesPublicly available databases
eta Audit Letters
Based on:Based on: review of applicationreview of application selection for quality control purposesselection for quality control purposes
Required documentation based upon the particulars of the Required documentation based upon the particulars of the application – some will be requested by the audit letterapplication – some will be requested by the audit letter
30-day response time30-day response time for submittal of application for submittal of application documentation – one extension at COs discretiondocumentation – one extension at COs discretion
CO may ask for additional informationCO may ask for additional information
Failure to comply, application denied and future Failure to comply, application denied and future applications auditedapplications audited
Application may be denied after review of supplied Application may be denied after review of supplied documentsdocuments
eta Supervised Recruitment Directed by Certifying Officer
Advertising requirements for the job Advertising requirements for the job opportunityopportunity
Detailed written recruitment reportDetailed written recruitment report
30-day response time 30-day response time
eta Labor Certification Determinations by Certifying Officer
Application either certified or deniedApplication either certified or denied
Final notification to employers in writingFinal notification to employers in writing
Possibility of supervised recruitment up to two Possibility of supervised recruitment up to two yearsyears
Employer request for reconsideration or review Employer request for reconsideration or review within 30 dayswithin 30 days
eta BALCA Review of Denials
Request by employer to denying CO by Request by employer to denying CO by certified mailcertified mail
Assembly of appeal file by certifying officerAssembly of appeal file by certifying officer sent to BALCAsent to BALCA copy to employer copy to employer
eta Consideration by and Decisions of BALCA
Briefs and Statements of Position within 30 daysBriefs and Statements of Position within 30 days
Notification of decisionNotification of decision
HearingsHearings – notification and procedure – notification and procedure
No remandsNo remands
Review on the recordReview on the record
eta Substitutions and Invalidations of Labor Certifications
After issuance, subject to invalidation for fraud After issuance, subject to invalidation for fraud or willful misrepresentationor willful misrepresentation
Substitution of alien beneficiariesSubstitution of alien beneficiaries
Issuance of duplicate certifications Issuance of duplicate certifications
eta Fraud or Willful Misrepresentation in Certification Applications
If possible fraud discovered before certification, If possible fraud discovered before certification, referred to USCIS, DOL Inspector General, etc.referred to USCIS, DOL Inspector General, etc.
If subject to judicial process, application If subject to judicial process, application processing haltedprocessing halted
If fraud found, application invalidated and If fraud found, application invalidated and processing terminatedprocessing terminated
90-day notification period90-day notification period
eta Revocation of Approved Labor Certifications
Basis - Certifying Officer finds certification Basis - Certifying Officer finds certification was not justifiedwas not justified
Employer receives notice of intent to Employer receives notice of intent to revokerevoke
eta Process for Obtaining a Prevailing Wage Determination
Request prevailing wage determination from SWA Request prevailing wage determination from SWA serving area of intended employment on serving area of intended employment on their formtheir form
Validity period 90 days to 1 year from determination Validity period 90 days to 1 year from determination datedate
Employers must file their applications or begin Employers must file their applications or begin recruitment within the validity period specified by the recruitment within the validity period specified by the SWASWA
eta Process for Obtaining a Prevailing Wage (continued)
SWA determination sources:SWA determination sources:
CBA when appropriateCBA when appropriate
employer provided surveyemployer provided survey must meet all requirements listed in the regulationsmust meet all requirements listed in the regulations median acceptable if no meanmedian acceptable if no mean DBA and SCA may be utilized by employers – no longer mandatoryDBA and SCA may be utilized by employers – no longer mandatory
OESOES
Guidance forthcoming on 4 wage levelsGuidance forthcoming on 4 wage levels
The SWA must consider one supplemental submission concerning The SWA must consider one supplemental submission concerning the wage determinationthe wage determination
eta Prevailing Wage Review
Request from employer within 30 days of the Request from employer within 30 days of the determination by the SWAdetermination by the SWA
CO reviews determination based on the recordCO reviews determination based on the record
Employer may request BALCA review of CO Employer may request BALCA review of CO determination within 30 days of the date of the determination within 30 days of the date of the decisiondecision
eta Address and Contact Information
Employment and Training AdministrationEmployment and Training Administration
Office of National ProgramsOffice of National Programs
Division of Foreign Labor CertificationDivision of Foreign Labor Certification
200 Constitution Ave., NW C-4312200 Constitution Ave., NW C-4312
Washington, DC 20210Washington, DC 20210
DFLC website DFLC website http://www.ows.doleta.gov/foreign/http://www.ows.doleta.gov/foreign/ or or http://www.workforcesecurity.doleta.gov/foreign/http://www.workforcesecurity.doleta.gov/foreign/
Send questions to Send questions to [email protected]@dol.govgov