Benjamin Beijing Wang Attorney at Law - Member of AILA

Labor Certification

The labor certification is a prerequisite to obtaining permanent residence based upon a job offer in the U.S.  An employer must file with the U. S. Department of Labor a form called “Application for Permanent Employment Certification.” (Form ETA 9089).  This Form may be submitted electronically or by mail.

Under the PERM regulations, all recruitment is done prior to filing the application.  Generally, recruitment must take place between 30 days and 180 days prior to filling.  In the case of a professional job offer, one of the three additional steps may take place within 30 days of the filing of the labor certification application.

 There are very specific requirements the employer must follow in order to meet the recruitment test.  The recruitment requirements are different depending on whether the occupation in the job offer is classified as a professional or nonprofessional.  For nonprofessional positions, the employer at a minimum must:  (1) place a job order with the local SWA serving the area of intended employment for a period of 30 days; and (2) place two Sunday newspaper advertisements.  Additionally, a notice of the intent to file a labor certification application must be posted for 10 consecutive days, or given to the bargaining representative.  The notice is not considered as a part of the recruitment process. 

 If the positions are classified as professional, there are two steps in the recruitment process:  (1) mandatory steps and (2) additional steps.  First, the employer must follow the recruitment process for nonprofessionals.  These recruitment steps must take place at least 30 days but no more than 180 days before filing the application.  Second, the employer is required to conduct additional recruitment.  The employer must use three additional recruitment steps from a list of 10 alternatives provided under the PERM regulations. 

 Under the PERM , the minimum amount of time between initiating the recruitment and filing the application is about 60 days.  First, the job order must be placed with the SWA for 30 days.  Second, the employer must wait for 30 days after the end of the job order placed with the SWA and before filing the application.  The DOL has estimated that it takes them about 45 to 60 days to approve or deny the application, assuming that no audit is required.

 If the DOL requests an audit, documentation of the recruitment efforts and responses to those efforts, as well other records and documents must be submitted to the DOL in a timely manner.  The DOL generally follows three standards in the audit process in adjudicating labor certification applications:  (1) whether the employer has met the requirements of the regulations; (2) whether there are sufficient workers who are able, qualified, willing and available; and (3) whether the employment of the alien will have an adverse effect on wages and working conditions of U.S. workers similarly employed.  After the audit has completed, the certifying officer may:  (1) certify the application; (2) deny the application, or (3) order supervised recruitment.  If the application is denied, the employer may request a review by the Board of Alien Labor Certification Appeals (BALCA).

 Although the labor certification is a prerequisite to obtaining permanent residence based upon a job offer, it is NOT employment authorization.  The Department of Labor only certifies that no worker is qualified or available and that the wages and working conditions will not depress those of workers.  Employment authorization can only be granted by the U.S. Citizenship and Immigration Services; not the Department of Labor.