What is the new PERM labor certification process?

What is the new PERM labor certification process?
By Attorney Kenneth Ursua Reyes

The same standard applies under the new PERM labor certification as the previous labor certification process. This standard is based on whether there are not sufficient US workers who are able, willing, qualified and available; whether the employment of the alien will have an adverse effect on the wages and working conditions of the United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.

Beginning March 28, 2005, all labor certifications must be filed using the new PERM process. The department of labor states that the application can be processed between 45-60 days. However, certain steps needs to be made prior to and in preparation for the filing of a PERM case which will require more time in addition to the processing time. This is evaluating the position and performing the recruiting process.

It is important to precisely define the job requirements of the applicant before starting the PERM process. This is done by comparing and evaluation the job duties and requirements for that position to the duties and requirements described in the Occupational Information Network [O*NET online]. If the task listed is not normal for the position, then there is a risk that the case will be audited. Any task that is not “normal” for the position must show business necessity. The requirement must bear a reasonable relationship to the employer’s requirement.

The US Department of labor frowns on foreign language requirements except if it can be shown to be a “business necessities.” This is shown if 1) the requirement bears a reasonable relation to the occupation or 2) the requirement is “essential” to the occupation.

The salary offered for the position must be at least the prevailing wage for the position. There salary level for particular positions are on a 4 level tier depending on the skill level and experience required. Prevailing wage is determined by requesting a prevailing wage determination or through private surveys.

The recruiting process depends on whether the position is for professional or non-professional.
A. Non-professionals Position
Non professional positions require at least 2 Sunday advertisements, an State Workforce Agency (SWA) job order for 30 days, and an on-site job posting for at least 10 consecutive days. The recruiting must be done within 180 days of filing the ETA 9089 but no later than 30 days prior to filing the ETA 9089. The advertising should contain the name of the employer, the address where resume’s are to be sent, the job description (must match the ETA 9089), and the location where the job is located. There is no need to post the wages.
B. Professional Position
Professional positions are thos on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor’s or higher degree is a customary requirement. For professional type position, 3 additional recruiting efforts are required. This can be 1)Sunday Advertisements 2) Trade or professional journal advertising plus one Sunday Advertising 3) Employer website advertising 4) Internet job placement like Monster.com 5) On-campus recruiting 6) On-campus job posting 7) Private employment or recruitment firms 8) Employer referral programs 9) Local/ Ethnic newspapers 10) Radio and or TV advertising 11) Job fairs.

After conducting the recruiting process, the employer must prepare a recruitment report. This entails categorizing the lawful job-related reasons for rejection of US applicants and provide the number of US applicants rejected in each category. The recruitment report does not have to identify the individual US workers who applied for the job opportunity.

The PERM labor certification is filed using form ETA 9089 and can be filed either electronically or through regular mail. If done electronically, both the employer must sign the ETA 9089 after approval by the Certifying Officer. The ETA 9089 must be filed where the job opportunity is located. The ETA 9089 is submitted without any documentation included. It is based on an honor system similar to filing federal income tax returns. However, recruiting documentation must be kept and saved for at least 5 years and made available in case of an audit.

An employer may refile a labor certification filed previously under the old system without losing the priority date if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, by withdrawing the original application and submitting, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation within 210 days of withdrawing the previous application.

If you need assistance in handling your PERM labor certification case, it is best to contact an experienced immigration attorney. Attorney Kenneth Reyes is a member of the American Immigration Lawyer’s Association (AILA) and the Los Angeles County Bar Association, Immigration Section. Atty. Reyes is also the current President of the Philippine American Bar Association. You may contact Atty. Reyes at (213) 388-1611 or via e-mail at kureyeslaw@aol.com. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA.

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