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The PERM LC Process : The Basics of a Successful Green Card Case
Posted
May 12,
2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
Most employment-based, permanent residency (or "green card") cases begin
with filing a Labor Certification (LC) application on Form 9089 through
PERM. PERM is the abbreviated name of the U.S. Department of Labor (DOL)
Program Electronic Review Management system, which has been in place since
March 2005. Through the PERM system of labor certification, the DOL works to
fulfill two goals: (1) aid employers in hiring, if U.S. workers are
unavailable and (2) protect the wages and working conditions of U.S.
workers. To facilitate these goals, the DOL operates this labor
certification program for "permanent" employment.
©MurthyDotCom
The PERM Form 9089 can be submitted by mail or online. Mailed applications
generally are discouraged by the DOL, however, and are subject to
significantly longer processing timeframes. In the PERM process, a U.S.
employer attests that it is offering a job to a foreign national to work in
the position as a permanent resident and that no qualified U.S. workers were
found who were available and willing to fill the position.
©MurthyDotCom
As the first of three stages toward getting a green card through employment
sponsorship, labor certification requires an employer to verify that the
wages and work conditions of similarly situated U.S. workers will not be
negatively affected by the employment of a foreign national in the selected
job. These representations are made to the government on the PERM 9089 form,
along with details of the offered position, the pre-filing recruitment
conducted, and the background of the foreign worker being sponsored.
©MurthyDotCom
Employer Definition of Job Requirements
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The first step in the labor certification process is for the employer to
define the sponsored position's job title, job duties, and job requirements.
While the DOL's rules prohibit tailoring job requirements to fit a
particular worker, the law recognizes that an employer has a variety of
positions within its company. For example, an employer may have two
different software engineer jobs with differing levels of education and
experience. Employers' job requirements are often based on various factors,
including past hiring practices or criteria established by a client. Any
education and/or experience that is necessary for the performance of the
position's duties must be clearly stated on the 9089 form.
©MurthyDotCom
An employer's job requirements on the labor certification will usually
determine how the position will be classified by the U.S. Citizenship and
Immigration Services (USCIS) during the second stage of the green card
process, the Form I-140 Immigrant Petition. Some of the issues an employer
will encounter during the I-140 stage of the GC process are discussed in
Green Cards : Improvements in Processing and
Strategies, available on MurthyDotCom. In the
employment-based GC process, labor certification-based cases are classified
at the I-140 stage, into either the employment-based, second preference
(EB2) or third preference (EB3) categories. In order to qualify for EB2
classification, the sponsored job's requirements must be at least a master's
degree or a combination of a bachelor's degree and five (5) years of
progressive post-baccalaureate experience. Positions that do not meet the
EB2 standard fall into the EB3 category, which is further divided into three
sub categories: professional (requiring at least a bachelor's degree);
skilled worker (requiring at least two years of experience), other workers
(any requirements less than that of a professional or skilled worker). The
EB preference categories depend upon the position requirements on the labor
certification application, however the USCIS's method of classification
bears no relation to the DOL's job classification system.
©MurthyDotCom
The Impact of the DOL Job Classification System
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The DOL operates the Occupational Information Network, known as O*Net. The
O*Net is an important resource for employers going through the labor
certification process because of the general information it provides on
duties, skills, and hiring requirements. O*Net categorizes jobs into general
occupations and reports the range of experience and/or education normally
required for a job. Each occupation in the O*Net is assigned a specific Job
Zone that identifies the level of education, training, and experience that
the industry, as reported to DOL, normally requires. The employer's stated
job requirements are evaluated by the DOL based upon what the DOL states is
the industry norm in the matching Job Zone.
©MurthyDotCom
The DOL uses the O*Net and its Job Zones to determine whether the job
requirements stated on the LC application form are excessive. The data in
the O*Net is based on combining preexisting occupational data with survey
data gathered on a continuing basis. As a result, the DOL often treats as
exceeding the industry standard any job with requirements that are greater
than those the O*Net indicates are normal. As explained in "Preparing for
Labor Certification PERM Audits," published in the first issue of
Murthy's Corporate Bulletin, Feb 2008, and
available on MurthyDotCom, when actual minimum requirements for a job
exceed the DOL standard found in the Job Zone, there is an increased risk of
an audit of the PERM application. Long-time MurthyDotCom and
MurthyBulletin readers may recall a discussion of these concerns in our
September 2, 2005 article, PERM Approvals
More Common .
©MurthyDotCom
Determining the Offered Salary
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Once the sponsored job and requirements are identified and the employer has
confirmed the duties that will be performed, a request for a Prevailing Wage
Determination (PWD) must be submitted to the appropriate State Workforce
Agency (SWA). The State Workforce Agency will evaluate an employer's job
duties and requirements, based on the O*Net. This will determine the job
classification and the prevailing wage. As part of the prevailing wage
determination, the SWA will assign one of four wage levels based primarily
on the relationship between the education and/or experience requirements and
the normal range of hiring requirements assigned by the O*Net. In other
words, the higher the job requirements, the higher the prevailing wage.
Travel and supervisory requirements not inherently part of the job can also
increase the wage level assigned by the SWA.
©MurthyDotCom
The prevailing wage is defined by the DOL regulations as the mean salary
paid to similarly-situated workers within the area of intended employment.
The offered wage listed on the labor certification must be at least equal to
the prevailing wage as determined by the SWA. As part of the PERM
submission, the employer must attest that it will pay this offered wage at
the time the foreign national begins work in the sponsored position.
©MurthyDotCom
In determining the prevailing wage, the SWA must receive and use any
properly negotiated collective bargaining agreement (CBA) for the sponsored
position. If no CBA exists, the SWA is required to use the Occupational
Employment Statistics wage program of the Bureau of Labor Statistics to set
the prevailing wage. An employer may request the SWA to use an Alternative
Wage Survey (AWS) meeting criteria established by the DOL. To be acceptable,
the AWS must have been completed within the 24 months prior to the request
for a PWD, be the most current edition of the survey, and be based upon
information collected within 24 months of the publication of the survey. The
survey must also include wage data for the geographic area of intended
employment and the occupational category of the sponsored job. An employer
can dispute an SWA determination on the basis that the PWD assigned the
incorrect occupational code or skill level. The prevailing wage may be
appealed to the DOL certifying officer within 30 days of the PWD, but this
decision-making process can be lengthy and uncertain and will prevent the
filing of the ETA 9089 form until it has been resolved. An employer also can
choose to accept the PWD as it is issued or modify the job requirements and
resubmit the request for a prevailing wage.
©MurthyDotCom
Using a Range for the Offered Wage
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The use of a salary range for the offered wage has several benefits,
particularly where an employer intends to file multiple PERM cases. Wage
ranges allow for the inclusion of multiple individuals in the same sponsored
position at a variety of current salaries, and allows for salary increases
during the preparation of the LC case. An additional advantage is that the
employer need only demonstrate the ability to pay the bottom of the range at
the I-140 stage. However, this strategy does require that the bottom end of
the range be at least equal to the prevailing wage as determined by the SWA.
©MurthyDotCom
Pre-Filing Recruitment
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Recruitment must be completed prior to filing the PERM application with the
DOL, to establish that there are no able, willing, and qualified U.S.
workers for the sponsored job. For college or university teachers (referred
to as "special handling" cases), the employer must provide evidence of the
recruitment and complete results of a competitive selection process. For all
other PERM filings, a company will need to advertise the job on two Sundays
in a newspaper of general circulation for the area of intended employment
and place a job order through the State Workforce Agency, for thirty days,
as well as posting a notice of the LC filing at the worksite for ten
consecutive business days. The employer must maintain detailed documentation
of all recruitment steps taken in the pre-filing process. Newspaper ads can
be documented with a "tear sheet," usually the exact page of the publication
in which the advertisement ran, which should identify the publication and
the date of the ad. In a rural area, without a Sunday paper, the DOL will
allow use of the newspaper in the area with the widest circulation in the
area of intended employment, however it is important that evidence that the
selected publication is appropriate be maintained with the tear sheet.
©MurthyDotCom
For professional positions that require an advanced degree (such as a
master's degree or higher) and experience, a professional journal ad may
replace one Sunday newspaper advertisement.
©MurthyDotCom
Furthermore, for professional positions the employer must complete three
additional forms of recruitment from the following options: job fair,
employer's website, job search website, on-campus recruiting, a trade or
professional organization, a private employment firm, an employee referral
program with incentives, campus placement office, a radio or television ad,
or a local and/or ethnic newspaper. If an employer is unsure whether a
position is a professional position or a non-professional position, it is
generally a good rule of thumb to assume that it is a professional position
and conduct the additional recruitment steps.
©MurthyDotCom
Evidence of Compliance : The DOL Audit
©MurthyDotCom
Prior to approving or denying the case, the Certifying Officer (CO) may
issue an audit notification letter requesting some or all of the following
documentation: proof that the employer exists and has made a bona fide job
offer; Proof that the beneficiary is qualified for the job offered; proof of
recruitment efforts; report of the results of recruitment, which must
include the lawful job related reasons for not hiring any U.S. workers who
applied for the job and/or any U.S. workers in the area that the employer
has recently laid off; resumes of the job applicants; and/or "business
necessity" justification for the position requirements.
©MurthyDotCom
The DOL can issue audit notification letters for up to five years after
approval. Therefore, the regulations require that all supporting documents
be maintained for five years, even if the file is not audited during the
PERM process.
©MurthyDotCom
Resumes & Interviews : Determining Whether there
are Qualified U.S. Workers
©MurthyDotCom
The employer must evaluate any resumes received to determine if there are
able, willing, and qualified U.S. workers who have applied for the position.
This should be consistent with the method the employer normally conducts
recruitment. The employer is not required to interview all applicants; only
those who appear to meet the minimum requirements for the position. The
employer should not delay in contacting the applicants. The Board of Alien
Labor Certification Appeals (BALCA) has held that even a two-week delay in
contacting candidates could be evidence of a lack of good faith in
recruitment. The employer is not required to pay the cost of transportation
to the interview, unless this is normally done for other applicants or
positions, and so a phone interview is sufficient. Furthermore, the employer
is not required to offer applicants any wages above the amount that is
listed on the Form 9089.
©MurthyDotCom
The purpose of interviewing the applicants is to determine if there are any
able, willing, and qualified U.S. workers. To obtain an approval of the
labor certification application, the employer must prove that the employee's
sponsorship will not prevent the hiring of a qualified U.S. worker. The
employer must interview applicants who meet the minimum requirements for the
position in order to determine the interest and ability of each to work in
the job as offered. According to the DOL regulation of this process, if an
applicant can be trained to perform the job within a reasonable period of
time, s/he cannot be disqualified for lacking the knowledge and ability to
perform the job. All interviews and contacts with potential candidates
should be thoroughly documented and standardized to ensure all applicants
are treated equally. If an able, willing, and qualified U.S. worker is found
during the recruitment, the employer is generally prohibited from filing the
Form 9089. A limited exception to this rule arises if the employer has
multiple positions open. In such a situation, the employer can hire the U.S.
worker and continue filing the LC through the PERM system. It is important,
though, that the pre-filing recruitment indicates the availability of
multiple positions.
©MurthyDotCom
Conclusion
©MurthyDotCom
Certification by the DOL can be the first step toward obtaining
employment-based permanent residence in the United States. The Murthy Law
Firm has an experienced team of attorneys who counsel clients on how best to
complete the labor certification process using PERM. Although PERM is a
highly technical process, the Murthy Law Firm's attention to the
requirements of the program, as well as the interests of the sponsoring
employer, enable us to assist employers in avoiding potential traps for the
unwary. The process is detailed and highly regulated, but, it can be
traversed with the assistance of an experienced and qualified law firm.
©MurthyDotCom
"We know immigration matters!"
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