Labor Certification

In many case involving the employment of a foreign national on a permanent basis, the employer will need to secure a labor certification through the Department of Labor prior to filing a petition or a permanent residence application with U.S. Citizenship and Immigration Services. In 2005 the Department of Labor instituted what it calls the Program Electronic Review Management or PERM program. The PERM rules came into effect formally on March 28, 2005, and the promulgation of the rules for the filing of permanent labor certification applications replaces parts of the old 20 C.F.R. §655 and all of 20 C.F.R. §656.

Although some cases such as those for college and university professors will differ in terms of the process followed, the basic labor certification process can be summarized as follows:

1. Recruitment
2. Revocation and Invalidation of the Labor Certification
3. The Employer’s Required Attestations
4. Retention of Records
5. Notice Requirements
6. Recruitment Report
7. Layoffs
8. Job Duties and Requirement

1. Recruitment

Recruitment is more involved under the new process than under the old Reduction in Recruitment approved by General Administrative Letter (GAL) 97. The new process involves 2 newspaper print ads and placement of a job order with the State Job Service. In addition to these steps the employer is required to choose three additional recruitment sources from a Department of Labor list.

Employers are not permitted to reject a U.S. worker just because they do not have the required skills if that worker could attain the required skill level with on-the-job training within a reasonable time.

All recruitment efforts must take place 30 and 180 days prior to the filing of the PERM application and there is a 30 day cooling off period after recruitment during which the application cannot be filed. This is designed to allow last minute applicants to send in a resume or otherwise seek to be considered for the position.

2. Revocation and Invalidation of the Labor Certification:

The Department of Labor certifying officer has the power to revoke a labor certification for reasons other than obvious DOL error, fraud or misrepresentation in its submission. At the same time United States Citizenship and Immigration Services is granted broad investigatory power to examine whether the labor certification was honestly secured. If USCIS determines there was fraud or willful misrepresentation in the labor certification process then it can invalidate the labor certification. Thus, it is very important to keep good records and also to document reasons for proceeding in the manner in which an employer secures a labor certification. Such records can be crucial in counteracting allegations of fraud or willful misrepresentation.

3. The Employer’s Required Attestations:

In submitting a labor certification application to the Department of Labor the employer is required to make several attestations concerning the application. Those attestations are:

A. That the employer will pay a wage that is greater than or equal to the prevailing wage.
B. That the wage is not based on commissions, bonuses or other incentives unless guaranteed and paid monthly.
C. The employer has enough funds to pay the wage offered.
D. The employer can put the non citizen employee on the payroll at or before the time of entry into the United States.
E. The job does not involve unlawful discrimination based on race, creed, color, national origin, age, sex, religion, handicap or citizenship.
F. The job is not now vacant because a previous employee is locked out, on strike or in a labor dispute involving work stoppage.
G. Terms, conditions and occupational environment are not contrary to federal, state or local law.
H. The job is open to any U.S. worker.
I. U.S. workers who were rejected were rejected for job related reasons.
J. The job opportunity is for full-time and permanent and the alien is not the employer. By permanent the rules mean that the employment is intended to last for one year or longer. This is not binding in that the employee can leave and the employer can terminate without apparent revocation. The rule is not intended to create a system of indentured servants.

4. Retention of Records:

Employers must retain the application and all related documents for a period of five (5) years following the date of filing. This includes maintaining resumes.

Although the rule requires retention for five years there is a decision that must be made by employers for retention beyond that period. The DOL can begin the process of revoking labor certification beyond the five years. Thus, the employer may wish to consider retention beyond that period, as those documents may be needed to defend a revocation proceeding. It may be that the employer could scan and digitally store the documents at the five year mark in order to retain defense documents in the event they are required.

What should be retained? The safe conclusion is that everything must be retained—that is all documents that could become part of an audit and audits focus on compliance with the regulations and in particular compliance with the attestations. Thus, all documents related to the prevailing wage, resumes of applicants, interview sheets and notes detailing why an applicant was rejected, offer letters detailing the job offer, newspaper tear sheets showing the job was advertised, internal postings, documents evidencing notice as stated in the following section, all other recruitment documents, etc., should be retained. If in doubt please contact the firm to ask whether a particular document should be retained. However, the firm emphasizes that everything should be kept. In its final formulation of the PERM regulations the DOL has rejected the requirement that the lawyer maintain the documents and so the burden is on the employer to maintain the documents in their records. Of course it is also most safe to scan them in or retain a copy off site to address the possibility of a catastrophe such as fire, flooding, etc., at the employer’s place of business.

5. Notice Requirements:

Notice of the filing of a labor certification application must be provided to various sources depending on the employer’s situation. The notice is not considered a recruitment step, but is an informative one. If there is a collective bargaining representative then notice must be provided to the representative. In that case the notice is in the form of a letter and a copy of the ETA 9089 labor certification application. If there is no collective bargaining representative then notice must be posted internally for employees to see—posting in the area of the OSHA notices and the wage and hour notices is recommended. Notice must not be obscured by any other document or object.

The employer must also publish notice in any in-house media such as a web page visible only in-house or an employee newsletter. There are no exceptions to that rule.

If travel is required then the notice must state travel will be required. Additionally, the notice must state the geographic area in which the job will be located.

6. Recruitment Report:

A recruitment report must be prepared, but is not submitted with the application. The recruitment report is merely maintained in the employer’s records unless an audit is sought by the Department of Labor. This is one of the documents you must retain for five years.

The recruitment report must describe the recruitment. The number of hires and U.S. workers rejected categorized with the reasons for rejection must be stated. DO NOT DISCARD APPLICATIONS SUBMITTED BY REJECTED WORKERS. Maintain all applications and resumes as part of the recruitment file in the event of an audit. If you keep notes of your interviews of U.S. workers then you are not required to keep those under the current law. However, if the DOL were to attempt to revoke the labor certification then it would be very useful to have notes detailing job related reasons the applicant was rejected so you can refresh your memory when responding to an audit. If they did not have required experience and cannot gain it during a reasonable period of on the job training (i.e. a non university grad attempting to get a job as a heart surgeon—extreme, but an example) and that is in your notes then that can assist in defense of a revocation. The safe thing to do is to keep everything.

7. Layoffs:

If you have had a layoff in the last 6 months contact your lawyer right away. This triggers special requirements in recruitment.

8. Job Duties and Requirements:

There are specific requirements with regard to drafting the job description to take into account duties and other requirements. Properly drafting the job description can have a tremendous effect on challenges to recruitment results by DOL, and can also affect the prevailing wage the employer must pay under the law. Your lawyer will work with you to craft the job description in a manner that truthfully reflects the actual job and avoids dangerous and costly pitfalls that can arise through improper drafting.