IMMIGRANT VISAS ( GREEN CARDS )

Labor Certification, administered by the U.S. Department of Labor, is normally the first step for a foreign individual to obtain permanent resident status - a green card – through an employment-based immigrant visa petition. A U.S. employer applies on behalf of the foreign worker and must show that this job offer will not displace an available U.S. worker, nor will it adversely affect the wages or working conditions of similarly employed U.S. workers.  Labor certification applications are a pre-requisite for most employment-based petitions, with the exception of the EB-1 category and EB-2 National Interest Waiver petitions.  In addition, certain shortage occupations – nurses and physical therapists - have been deemed “pre-certified” and do not require labor certification.

The traditional method for labor certification followed the following steps:

1.	The U.S. employer files the labor certification application at the nearest local State Workforce Agency ("SWA").
2.	After a wait of several months up to two or three years at some SWA offices, the SWA evaluates the wage offered by the employer for the position, using Occupational Employment Statistics (OES) wage data.  If the wage the employer has offered for the position is less than the prevailing wage (or lower than within 5% of the prevailing wage), the SWA directs the employer to amend the offered wage.  Otherwise the application will be denied.  Offering low wages to foreign workers is deemed to adversely affect the wages and working conditions of U.S. workers.
3.	The SWA then directs the employer to place an advertisement, to run for 3 consecutive days, in the local newspaper (or in a trade journal for a professional position).  Applicants are directed to send their resumes to the SWA office, which then forwards them to the employer.  The employer must contact each applicant who appears qualified by his or her resume.  If the employer finds the applicant unqualified for the position, he must state the lawful job related reasons that the applicant is unqualified.  If the SWA deems that any of the applicants are indeed qualified, the application is denied.  If the SWA  determines that no qualified U.S. workers have applied for the position, the application is forwarded to the Regional Office of the U.S. Department of Labor for further processing.
4.	The application again sits for several months, or even years at some Regional Offices, before it is evaluated by the Regional Office.  If the Regional Office finds flaws in the application, it issues a Notice of Findings to the employer, who must rebut these findings within 35 days.
5.	The Regional Office approves the application if it determines that the employer has demonstrated that no U.S. workers will be displaced by the job offer and that the offer will not adversely affect the wages or working conditions of similarly employed U.S. workers.
This traditional method for labor certificationiwas very time consuming.  For this reason the U.S. Department of Labor issued a notice in 1997 stating that it preferred employers to submit labor certification applications under the faster “reduction in recruitment” method.  This method proved to be  one to three years faster than the traditional method for most Department of Labor offices.

An alternative to the regular labor certification process was called Reduction in Recruitment (RIR). It was available for employers who established a pattern of recruitment before the labor certification was submitted. It was only available for skilled occupations that require at least two years of prior experience. The steps in the Reduction in Recruitment Method were as follows:

1.	The employer recruits for the position for a period of six months prior to submitting the labor certification application.  The employer must demonstrate a pattern of recruitment for this 6 months period that is normal for the industry. Each DOL regional office has set different standards for this pattern of recruitment. Recruitment normally requires some of the following:  print ads in a local paper (or trade journal for a professional position); posting on website; internal posting at place of work; college campus recruitment; posting with an employment agency.
2.	The U.S. employer files the labor certification application at the nearest local State Workforce Agency ("SWA").
3.	After a wait of several weeks to several months, depending on the SWA office, the SWA evaluates the wage offered by the employer for the position, using Occupational Employment Statistics (OES) wage data. If the wage the employer has offered for the position is less than the prevailing wage (or lower than 5% of the prevailing wage), the SWA directs the employer to amend the offered wage to meet the prevailing wage. Once the prevailing wage is met, the SWA forwards the application to the Regional Office of the U.S. Department of Labor.
4.	The application sits at the Regional Office for several months before it is evaluated. If the Regional Office finds flaws in the application, it issues a Notice of Findings to the employer, who must rebut these findings within 35 days.
5.	The Regional Office approves the application if it determines that the employer has demonstrated that no U.S. workers will be displaced by the job offer and that the offer will not adversely affect the wages or working conditions of similarly employed U.S. workers.
The Reduction in Recruitment process was much faster than the normal labor certification process. An additional benefit was that the SWA did not directly supervise the recruitment process.

On March 28, 2005, the U.S. Department of Labor instituted the PERM process for labor certification applications.  All pending traditional and RIR labor certification applications were transferred to two regional backlog reduction centers.  The DOL estimates that it will take 2 - 3 years to process these backlogged applications.

The PERM process is intended to be an attestation of the employer’s recruitment efforts similar to the LCA (Labor Condition Application) used by H-1B employers, filed electronically, with the expectation of processing within 45 - 60 days.  The PERM process includes the following steps:

1.  The employer must register for PERM on the DOL website.  The employer must also register its attorney so that the attorney can access the application.

2.  The employer must obtain a prevailing wage determination for the position from the state SWA.  The employer must now pay 100% of the prevailing wage, as compared to 95% for traditional and RIR labor certifications.

3.  The employer must place a 30 day job order with the local state SWA office.  The PERM labor certification may not be submitted until 30 days after this job order has run.

4.  The employer must place 2 Sunday newspaper advertisements for the position.  If the job offer is for a professional occupation, the employer must conduct 3 other types of recruitment (DOL lists 10 possible types of recruitment methods).

5.  The employer must post a notice of the position at its worksite for 10 working days.

6.  The employer must submit the PERM application within 180 days of the first ad and at least 30 days after the last ad.

7.  The employer must keep track of all applicants for the position and provide lawful job related reasons for not hiring those considered unqualified for the position.

8.  The DOL may audit this PERM application and request that the employer submit to DOL all documentation supporting its recruitment for the position.

Although the PERM process is intended to simplify and shorten the labor certification process, at this point the process has numerous glitches causing substantial delays in submitting the applications and getting them approved.   Time will tell if PERM will be a benefit for employers filing labor certification applications.

Labor Certification Applications filed by colleges or universities for teachers are done under “special handling” procedures. The employer must demonstrate that it has conducted a competitive recruitment selection process (involving at least one advertisement in a national professional journal) within 18 months of filing the application, and that the foreign individual is more qualified than any of the U.S. workers who applied for the job. Special handling has the advantage of allowing college or university employers to hire the most qualified individual rather than a minimally qualified U.S. worker, as in the normal type of labor certification processing.  Specialized handling is now filed through the PERM process.

To request a consultation regarding an application for Labor Certification, please contact our office here.