Labor Certification (also known as ?PERM? Form ETA 9089)
U.S. immigration law requires, with limited exceptions, that individuals who desire to immigrate to this country through an offer of permanent employment must first, through the prospective employer, obtain clearance from the U.S. Department of Labor (DOL) before an immigrant visa petition (Form I-140) may be filed. This permission, based upon approval of a specific job offer, is called Labor Certification, Form ETA 9089.
U.S. immigration law assigns the responsibility of protecting U.S. jobs to the DOL. Most individuals intending to immigrate to the U.S. through employment must obtain an offer of permanent employment from an employer in the U.S.
The employer must file Form 9089 with the DOL. The DOL will not certify Form 9089 if is determined that there are U.S. workers who are able, willing and qualified to perform the duties of the permanent position offered to the applicant. The labor certification application will also be denied if the conditions of the job would have an adverse impact upon U.S. workers similarly employed.
Labor certification will be granted only when the position offered is full-time and permanent. If the position is temporary, it cannot form the basis for obtaining permanent labor certification.
On March 28, 2005 the DOL implemented Program Electronic Review Management (?PERM?), for filing and processing labor certification applications.? Under the system:
- Applications are electronically filed and usually adjudicated within approximately ten (10) months;
- Employers are required to obtain a prevailing wage determination from their respective State Workforce Agency (?SWA?) for the permanent position offered to the applicant;
- Employers are required to pay 100% of the prevailing wage at the time the application for Permanent Resident status (?green card?) is approved.
Pre-filing recruitment steps include:
- Posting of a notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing; and
- Employer?s use of any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization; and
- Placement of a job order with the SWA for a period of 30 days; and
- Placement of two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. The ads must be placed more than 30, but not more than 180 days before filing.
For professional jobs (requiring a Bachelor?s degree), use of three (3) additional recruitment steps from the following list is required:
- Job fairs
- Employer?s web site
- Job search web site other than the employer?s
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- An employee referral program, if it includes identifiable incentives
- Notice of the job opening at a campus placement office, if the job requires a degree but no experience
- Local and ethnic newspapers, to the extent they are appropriate for the job opportunity
- Radio and television advertisements.
Effective July 16, 2007, to ?enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States? the DOL published rules that:
- Prohibited substitution of beneficiaries
- Established a 180-day validity period for approved labor certifications
- Established requirements that employers pay the costs of labor certification, including preparing, filing, and obtaining certification
- Established procedures for debarment from the permanent labor certification program.