Editor’s Note: Jennifer G. Parser is a member of the Labor and Employment and Immigration Practice Groups of Ward and Smith, P.A. where her primary focus is on immigration matters.

PART I OF II

With the influx of aliens, both legal and illegal, into the United States, many United States employers not only want to hire a foreign worker, but also want that worker to obtain a "green card" whereby the worker becomes a lawful permanent resident of the United States. This usually involves a three-step process: (1) the immigrant petition; (2) immigrant visa availability; and, (3) immigrant visa adjudication. Before an employer can file an immigrant petition, it must obtain a labor certification from the United States Department of Labor ("DOL"). This is the first of a two-part article that discusses what is required of an employer before it can apply for labor certification.

What is a Labor Certification?

Before an employer can sponsor a worker for a particular permanent position in the United States (that is, file an immigrant petition with the U.S. Citizenship and Immigrant Service ("USCIS")), the employer first must obtain a labor certification from the DOL upon which the petition will be based. To obtain a labor certification, the employer must prove that it has a need to hire a foreign worker on a permanent basis for a particular position and that there is no minimally qualified United States citizen or lawful permanent resident who can fill that position. This requires the employer to complete certain recruitment procedures before applying for the labor certification.

An application for a labor certification must be filed with DOL’s Employment and Training Administration ("ETA") using ETA Form 9089 ("Form 9089"). Form 9089 may be filed either online through the Program Electronic Review Management System, known as "PERM," or by mail. Online filing saves the employer time and expense and ensures that the employer has provided all of the required information, as an incomplete application will generate a non-acceptance notice immediately alerting the employer to correct the Form 9089 and re-submit it. The DOL has committed to respond to an online application within 60 days after submission. Once the DOL approves the labor certification, the employer must file the immigrant petition to continue the green card process.

Pre-Filing Recruitment Procedures

Before applying for a labor certification, an employer must (i) seek qualified and available United States workers for the unfilled position by selecting and using recruitment methods from an approved list provided by the DOL, and (ii) retain proof of those recruitment efforts as well as any results. The employer also must refer to DOL’s online database to ensure that the qualifications it requires for the job in question are fair and not tailored to fit only the qualifications of the particular foreign worker the employer wants to sponsor. Exceeding the DOL-determined minimum requirements for the job in question virtually guarantees that the employer’s application for labor certification will be audited or denied by DOL.

The type of recruitment efforts that must be undertaken by an employer are determined by the nature of the position to be filled. For nonprofessional positions (those that do not normally require a bachelor’s or higher degree), the employer, at a minimum, must:

1. File a state job order for a period of at least 30 days with the State Workforce Agency ("SWA") serving the area of intended employment; and,

2. Place print advertisements for the position on two different Sundays in a newspaper of general circulation most appropriate to the position, and in the area of intended employment.

These two steps must be conducted at least 30 days, but not more than 180 days, before the filing of the application for labor certification.

For professional positions (those that customarily require a bachelor’s or higher degree), two steps are involved in the recruitment effort. The first step is mandatory and mirrors the recruitment procedure described above for nonprofessional positions. In addition, the employer must conduct additional recruitment by selecting three recruitment steps from a list of nine alternatives provided by the PERM regulations. These include:

• Employer attendance at job fairs;
• Advertising the position on the employer’s website;
• Advertising the position on a job-search website other than the employer’s website;
• Conducting on-campus recruiting or advertising at colleges and universities through campus placement offices;
• Advertising in trade or professional organization newsletters or trade journals;
• Using private employment firms/agencies to recruit employees;
• Implementing an employee referral program with incentives;
• Advertising in local and ethnic newspapers; and,
• Advertising through radio and/or television advertisements.

Two of these options must take place no more than 180 days, but not less than 30 days, prior to the filing of the application for labor certification, and one option can occur within 30 days before the filing.

Responses to Recruitment Efforts and Retention of Results

The employer not only must document the results, if any, of all recruitment efforts it undertakes, but also must document such recruitment efforts by completing a signed recruitment report. This report must be kept by the employer’s Human Resources Department for five years after the date the labor certification application is filed.

Employers are not required to interview all applicants who respond to the recruitment efforts. However, employers must interview those applicants who possess the minimum qualifications for the position advertised, and are required to inquire further if the applicant appears to meet the advertised requirements.

Conclusion

A successful labor certification through PERM requires diligence in fairly determining the needed qualifications for a position using DOL-approved sources, then recruiting through permitted means, and carefully recording such efforts and results, all prior to the filing of an application for the certification. Because of setting fair qualifications and requirements for a position, and requirements for an authentic and thorough recruitment process, approximately 50% of all PERM applications result in an audit by DOL. Diligence at each point in the labor certification process can help guard against an audit, insulate the employer from a potential denial, and hopefully result in retaining a valued foreign worker or hiring a talented foreigner on a permanent basis. The second part of this article, which is scheduled for publication next week, will discuss the actual filing of the application for labor certification and possible results.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jennifer Parser practices in the Labor and Employment Section and Immigration Practice Group of Ward and Smith, P.A., where she concentrates her immigration practice on business immigration, particularly investor visas. Jennifer’s practice is limited to Federal Immigration and Naturalization Law. She currently is licensed in New York only. For further information, please contact Jennifer Parser at (919) 865-8370 or at jgp@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.