The immigration laws of the U.S. require that most people who desire to immigrate to this country through an offer of permanent employment must first get clearance from the United States Department of Labor (“DOL”) before his/her Immigrant Visa application will be considered. This permission, usually based upon approval of a specific job offer, is called LABOR CERTIFICATION (“LC”) or PERM. As this applies to persons immigrating through offers of employment, persons seeking to immigrate based upon their relationship to a United States Citizen or Lawful Permanent Resident (“LPR”) are not subject to the LC requirement.
U.S. Immigration Law assigns the responsibility of protecting U.S. citizens and LPRs working in this country to the DOL. Every person intending to immigrate to the U.S. must first obtain an offer of permanent employment from an employer in the U.S. The employer then recruits for the position and files an application online for Labor Certification with the Department of Labor. DOL will not approve the LC application if there are qualified workers in the community where the job opportunity is located who are able, willing and qualified to perform the duties of the job. The LC application may also be denied if the conditions of the job would have an adverse effect upon workers in the U.S. doing similar jobs. These are two (2) of the standards which are used by DOL to decide whether to grant an Application for LC.
A LC application will only be granted when the position in question is full‑time and permanent. If the position is temporary in nature, it cannot form the basis for obtaining LC. The LC application is not an employment contract, but only a prospective job offer. The LC application may be withdrawn at any time.
The length of the process varies depending upon the processing time for the online system through the DOL. From the time the LC application is filed online, it could be three (3) to nine (9) months until a final decision from the DOL is received. Time is of the essence in immigration matters. The date that the LC application is filed online serves as the priority date for the alien in determining when an Immigrant Visa number under the quota system will be available.
The DOL has assigned to the State Employment office the responsibility of determining whether the wage being offered to the alien meets the prevailing wage in the location where the job will be performed. If the local office finds that the wage offered is below the prevailing wage, it will advise the employer to increase the amount offered.
As the attorney involved in a LC application, it is necessary to represent both the alien and the employer. Areas in which we provide assistance include:
- Completing Form ETA-9089, Application for Alien Employment Certification, Parts A & B with information provided by the employer and alien. The job offer as contained therein may not describe the position with unduly restrictive requirements. These requirements are those not normally required for the job. Only when “business necessity” is proven will these requirements be allowed.
- Working with the local office of the State Employment Office to have a job order placed. The job order will be listed with the Employment Service recruitment system for thirty (30) calendar days during which the Employment Service will refer seemingly qualified U.S. citizen or LPR applicants to the employer. The employer must cooperate in this attempt to recruit U.S. workers.
- Placement of an advertisement for the position in appropriate publications. The employer must advertise the job opportunity for two (2) Sundays in a newspaper of general circulation plus three (3) additional recruiting steps which are appropriate for the job. The ads should be placed in mediums which are “most likely to bring responses.”
- Advise regarding recruitment within employer’s organization. The employer must post a notice of the job opportunity in a conspicuous place on its premises. The notice must contain the same information required for the Employment Service ad, including the wage offered and other terms and conditions. Applicants must be directed to a designated person within the company. The notice must be posted for at least ten (10) consecutive business days and listed on the intranet, if available.
- Assisting in the accumulation of Recruitment Results. A record of responses received by the employer to the job order, posting, and ads must be maintained. Recruitment results must include resumes of all persons who applied and a statement of the specific, lawful, job‑related reason for not hiring each applicant. It is essential that a detailed, explicit explanation be provided for rejection of each applicant. If the recruitment efforts produced no applicants, this should be stated in writing.
- Assembling information and providing the same to the DOL. Subsequently, the DOL will either grant certification, remand the case for additional supervised recruitment or issue a Notice of Findings. The Notice of Findings lists the DOL’s view as to the deficiencies in the application. If the Notice of Findings is not responded to timely or satisfactorily, the Application will be denied.
In many cases, the employer is interested in employing the specific alien in the position. In this case, the employer files a LC Application because it is a prerequisite for the alien to obtain permanent resident status. It is incumbent upon all concerned to perform the routine functions of recruitment, selection, referral, and verification to conform to regulations of the DOL. The DOL offices are well aware of this and must provide the services even though it is recognized by all that the employer is interested in hiring the specific alien.