re-engineered permanent labor certification program (perm)

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

Basic Permanent Labor Certification Process

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)

Specific Occupations

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

Permanent Labor CertificationCase Processing

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

Prevailing Wage Determination Process for Permanent Labor Certification

Purposes

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

Application for Permanent Employment Certification

eta Form ETA 9089 (pg. 1)

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.gov

re-engineered permanent labor certification program (perm)

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