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PERM Labor Certification Overview - U.S. Immigration LAwyer Services

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PERM LAbor Certification

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's USCIS, the employer must obtain an approved labor certification request from the DOL's Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.  


To improve the operations of the permanent labor certification program, ETA published a final regulation on December 27, 2004, which required the implementation of a new re-engineered permanent labor certification program by March 28, 2005. This new electronic program has improved services to our various stakeholders.  


As of March 28, 2005, ETA Form 750 applications were no longer accepted under the regulation in effect prior to March 28, 2005, and instead new ETA Form 9089 applications had to be filed under PERM at the appropriate National Processing Center. Applications filed under the regulation in effect prior to March 28, 2005, have continued to be processed at the appropriate Backlog Elimination Center under the rule in effect at the time of filing. Only if an employer chose to withdraw an earlier application and refile the application for the identical job opportunity under the re-file provisions of PERM was a previously filed ETA Form 750 application filing date considered under the PERM regulation.


The DOL processes Applications for Permanent Employment Certification, ETA Form 9089. The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is approved by the DOL, it should be submitted to the USCIS service center with a From I-140, Immigrant Petition for Alien Worker. The priority dates are listed on the State Department’s Visa Bulletin.

 

Qualifying Criteria for Labor Certification in the U.S.


  • Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the PERM Regulations.
  • The employer must hire the foreign worker as a full-time employee. 
  • There must be a bona fide job opening available to U.S. workers. 
  • Job requirements must adhere to what is customarily required   for  the occupation in the U.S. and may not be tailored to the foreign  worker's qualifications. In addition, the employer shall   document that  the job opportunity has been and is being described   without unduly  restrictive job requirements, unless adequately   documented as arising  from business necessity. 
  • The employer must pay at least the prevailing wage for the occupation in the area of intended employment.


PERM Labor Certification Steps


  1. Application. The employer must complete an Application for Permanent Employment Certification (ETA Form 9089).    The application will describe in detail the job duties,   educational  requirements, training, experience, and other special   capabilities  the employee must possess to do the work, and a   statement of the  prospective immigrant's qualifications.
  2. Signature requirement. Applications submitted by    mail must contain the original signature of the employer, alien,   and  preparer, if applicable, when they are received by the   National  Processing Center (NPC). Applications filed   electronically must, upon  receipt of the labor certification   issued by ETA, be signed  immediately by the employer, alien, and   preparer, if applicable, in  order to be valid.
  3. Prevailing wage. Prior to filing ETA Form 9089,    the employer must request a prevailing wage determination from the    State Workforce Agency (SWA) having jurisdiction over the   proposed  area of intended employment. The employer is required to include on the  ETA Form 9089 the SWA provided information: the   prevailing wage, the  prevailing wage tracking number (if   applicable), the SOC/O*NET (OES)  code, the occupation title, the   skill level, the wage source, the  determination date, and the   expiration date.
  4. Pre-Filing Recruitment Steps. All employers    filing the ETA Form 9089 (except for those applications involving    college or university teachers selected pursuant to a competitive    recruitment and selection process, Schedule A occupations, and    sheepherders) must attest, in addition to a number of  other conditions of employment, to having conducted recruitment   prior  to filing the application.


The  employer must recruit under the standards for professional    occupations set  forth in 20 CFR 656.17(e)(1) if the occupation involved    is on the list of  occupations, published in Appendix A to the  preamble   of the final PERM  regulation. For all other occupations not  normally   requiring a bachelor's or  higher degree, employers can  simply recruit   under the requirements for  nonprofessional occupations  at 20 CFR   656.17(e)(2).  Although the occupation involved in a labor  certification   application may be a  nonprofessional occupation, the  regulations do   not prohibit employers from  conducting more  recruitment than is   specified for such occupations.


The  employer must prepare a recruitment report in which it    categorizes the lawful  job-related reasons for rejection of U.S.    applicants and provides the number of  U.S. applicants rejected in each    category. The recruitment report does not have  to identify the    individual U.S. workers who applied for the job opportunity.


  1. Audits/requests for information: Supporting    documentation need not be filed with the ETA Form 9089, but the    employer must provide the required supporting documentation if the    employer's application is selected for audit or if the Certifying    Officer otherwise requests it.
  2. Retention of records. The employer is required to    retain all supporting documentation for five years from the date   of  filing the ETA Form 9089. For example, the SWA prevailing wage    determination documentation is not submitted with the application,   but  it must be retained for a period of five years from the date   of  filing the application by the employer. 
  3. Refiling. If a job order   has not been placed  pursuant to the regulations in effect prior to   March 28, 2005, an  employer may refile by withdrawing the   original ETA Form 750  application and submitting, within 210 days   of withdrawing, an ETA  Form 9089 application for an identical job opportunity which complies  with all requirements of the new PERM regulation.
  4. Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions)    or by mail. However, the Department of Labor recommends that    employers file electronically. Not only is electronic filing, by   its  nature, faster, but it will also ensure the employer has   provided all  required information, as an electronic application   can not be  submitted if the required fields are not completed.   Additionally, when  completing the ETA Form 9089 online, the   preparer is provided prompts  to assist in ensuring accurate data   entry.


The  employer can access a customer-friendly web site (www.plc.doleta.gov)     and, after registering and establishing an account, electronically    fill out and  submit an Application for Permanent Employment    Certification, ETA Form 9089. 


Registration. To better assist employers with    processing the Application for Permanent  Employment Certification, the    electronic Online Permanent System requires  employers to set up    individual accounts. An employer must set up a profile by  selecting the    appropriate profile option in the Online System. By completing an     Employer Profile, you will be able to: 


  • Save time by pre-populating your general information. 
  • View the status of your labor certification  applications online. 
  • Update your profile information online. 
  • Track newly submitted labor certification  applications. 
  • Email saved labor certification applications to others  within the company. 
  • Add new users to your account. 
  • Withdraw labor certification applications no longer  needed.

  1. Filing by mail. National Processing Centers have    been established in Atlanta and Chicago. Employers submit paper    applications to the processing center with responsibility for the    state or territory where the job opportunity is located.

The  address and contact information for each National Processing    Center and the  states and the territories within their jurisdictions    are provided on our Contact Information page.

  1. Approvals. If the appropriate National Processing    Center approves the application, the ETA Form 9089 is "certified"    (stamped) by the Certifying Officer and returned to the    employer/employer representative who submitted the application.


The USCIS Petition For Labor Certification


After approval of the labor certification, the employer must file an  "Immigrant Petition for an Alien Worker" with the U.S. Citizenship and  Immigration Services (USCIS), Form I-140. The employer then attaches the  certified ETA Form 9089 to a completed USCIS Form I-140, along with the  appropriate fees, and submits the package to the appropriate USCIS  Service Center. The petition is filed by the employer on behalf of the  foreign worker and must include the approved labor certification and  other USCIS specified documentation. 


Schedule A Occupations for Labor Certification


Schedule A is a list of occupations, set forth at 20 CFR 656.15, for  which the Department has determined there are not sufficient U.S.  workers who are able, willing, qualified and available. In addition,  Schedule A establishes that the employment of aliens in such occupations  will not adversely affect the wages and working conditions of U.S.  workers similarly employed.


The occupations listed under Schedule A include:

  1. Physical Therapists - who possess all the qualifications    necessary to take the physical therapist licensing examination in   the  state in which they propose to practice physical therapy; and 
  2. Professional Nurses - the alien (i) has a Commission on Graduates in Foreign Nursing Schools (CGFNS) Certificate, (ii) the alien has passed the National   Council  Licensure Examination for Registered Nurses (NCLEX-RN) exam, or (iii)  the alien holds a full and unrestricted (permanent)   license to  practice nursing in the state of intended employment. 
  3. Sciences or arts (except performing arts) - Aliens (except   for  aliens in the performing arts) of exceptional ability in the sciences or  arts including college and university teachers of   exceptional ability  who have been practicing their science or art   during the year prior  to application and who intend to practice   the same science or art in  the United States. For purposes of this   group, the term "science or  art" means any field of knowledge   and/or skill with respect to which  colleges and universities   commonly offer specialized courses leading  to a degree in the   knowledge and/or skill. An alien, however, need not  have studied   at a college or university in order to qualify for the  Group II occupation. 
  4. Performing arts - Aliens of exceptional ability in the performing  arts whose work during the past 12 months did require, and   whose  intended work in the United States will require, exceptional   ability. 


An employer shall apply for a labor  certification for a Schedule A    occupation by filing an  ETA Form 9089, in duplicate with the    appropriate USCIS Center, NOT with the Department of  Labor or a SWA.

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