Pre-filing Recruitment Steps

Prevailing wage determination as a pre-requisite to filing

Employers must file with the SWA and receive a prevailing wage determination prior to filing the ETA 9089. Employers will use the Department of Labor designated prevailing wage request form. Information from the prevailing wage determination will then be incorporated into the ETA 9089. The actual prevailing wage determination form should be retained as a supporting document.

Posted Notice

The employer must post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage. The primary purpose of the posted notice is to give employees an opportunity to comment on the application and that the posted notice is not another way to recruit US workers.

Job Order

The employer must place a job order with the appropriate state Department of Labor (SWA) for a period of 30 days.

Advertisements

The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ads may be placed on consecutive Sundays. Placement of the ad under an inappropriate heading or keyword would be considered a failure to make good-faith efforts to recruit U.S. workers.

The ad must list:

1) The name of the employer,

2) The geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites),

3)  A description of the vacancy specific enough to apprise US workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Form 9089.

4)  The ad must direct applicants to send resumes or report to the employer, as appropriate.

5)  The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes.

6)  The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage.

Documentation of the ad can be supplied by a copy of the newspaper page or proof of publication supplied by the newspaper. Form ETA 9089 requires the employer to list the name of the newspaper and date of publication for each ad.

If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.

Three Additional Recruitment Steps for Professional Jobs

The PERM regulation retains the requirement in the regulations is that all applications for professional jobs must have 3 additional recruitment steps. The list of permitted additional recruitment steps in the final PERM regulation include:

1)  Job fairs;

2)  Employer’s web site;

3)  Job search web site other than employer’s;

4)  On-campus recruiting;

5)  Trade or professional organizations;

6)  Private employment firms.

7)  An employee referral program, if it includes identifiable incentives;

8)  A notice of the job opening at a campus placement office, if the job requires a degree but no experience;

9)  Local and ethnic newspapers, to the extent they are appropriate for the job opportunity;

10)   Radio and television advertisements.

11)   Further, a web page generated in conjunction with a print ad now counts as a website other than the employer’s.

The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month. Only one of the additional recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the employers to specify the dates of each additional recruitment step. The final rule specifies how each type of additional recruitment activity can be documented.

Alternative recruitment steps only require employers to advertise for the occupation involved in the application rather than for the job opportunity as is required for the newspaper ads.

Distinguishing between Professional and Non-Professional Jobs

A professional job is a job for which the attainment of a bachelor's or higher degree is a normal education requirement. The Department of Labor published a list of professional occupations in Appendix A to the PERM rule. If the occupation is listed on Appendix A, the employer must follow the recruitment regimen for professional occupations.

Recruitment Report

Contents of Recruitment Report

The employer must prepare a recruitment report that describes the recruitment steps taken and the results. The recruitment report must include a list of all applicants who applied for the position or submitted resumes and the reasons why or why not that they did not qualify for the position, when and how they were interviewed, and a summary of their qualifications.

The Department of Labor may, after reviewing the employer’s recruitment report, request copies of the US workers’ resumes, sorted by the reasons for rejection. The employer must sign the recruitment report.

Failure to Meet the Minimum Requirements

An applicant's failure to meet the employer's stated minimum requirements is a lawful reason for rejection; however, if a worker lacks a skill that may be acquired during a reasonable period of on-the-job training, the lack of that skill is not a lawful basis for rejecting an otherwise qualified worker. This final rule does not specify what constitutes a reasonable period because the training period may vary by occupation, industry, and job opportunity.  Rejecting U.S. workers due to appearance, personality, or attire are non-lawful reasons for rejection under this program.  Rejection must be clearly related to an inability to meet the education and/or experience requirements. 

Retention of Documentation

Supporting documents must be retained for five years from date of filing.

Supporting documentation

Whether filed electronically or by mail, no supporting documentation will be filed with the ETA 9089. Instead, the employer must maintain supporting documentation in the event an audit is required or the Department of Labor otherwise requests certain documents. Such documentation, along with a copy of the ETA form, must be retained for five years from the date of filing ETA 9089.

Inclusion of Attorneys’ Fees

The foreign workers for whom the PERM application is filed, should not pay any of the advertising, attorney or other fees associated with the application.  If the foreign worker is “required” to pay any of the PERM costs, the position will be challenged as to whether or not the job is open to U.S. workers and likely denied.

Filing Fees

There is no filing fee for the PERM application as of this time.

Business Necessity

To require skills or experience beyond what the Department of Labor deems is appropriate for the job, an employer must establish a legitimate business necessity. To establish business necessity an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer. Examples of job requirements needing business necessity are language requirements, excessive experience or education, or any requirement outside the normal range of requirements for the position.

O*NET’s Job Zones and SVP levels

Unless documented as arising from business necessity, the job duties and requirements must be those normally required for the occupation AND must not exceed the SVP level assigned to the occupation as shown in the O*NET job zones. Business necessity documentation will be required in an audit.  The business necessity test can be used by the Department of Labor if the requirements exceed the SVP, and that a revision of the SVP is beyond the scope of this rule. Apparently, a clarification of the SOC job zones is also beyond the scope of the rule.

Foreign Language Requirements and Expansion of Rule

PERM rules allow for “business necessity” to justify the requirement of a foreign language. Furthermore, DOL has expanded the rule to include other possible business justifications for a foreign language requirement such as the need to communicate effectively with one’s co-workers or subordinates. Safety considerations in certain working environments may also support a foreign language requirement.

The regulations list the factors which may be used to demonstrate business necessity such as the need to communicate with a large majority of the employer’s customers, employees, and contractors. It also describes the type of documentation that must be retained: the number and proportion of its clients, contractors, or employees that do not speak English; detailed plans to market to a foreign country; and detailed explanation why the duties include frequent communication with such individuals.

Combination of Occupations

The PERM rule allows justification for combination of occupations showing that the employer normally employs such individuals, or that it is customary in the industry, or it is a business necessity.

Alternative Experience Requirements- Denials for tailoring the job to the foreign worker.

An employer may specify alternative requirements in some cases. However, the Department of Labor cautions that even where the employer’s alternative requirements are substantially equivalent but the foreign worker does not meet the primary job requirement and qualifies through the alternative requirements, such alternative requirements will be viewed as unlawfully tailored to the alien’s qualifications unless the employer indicates that applicants “with any suitable combination of education, training or experience are acceptable.”

Experience Gained On-the-Job: New Standards

Dissimilar Jobs

An employer may use experience gained by the alien in a different job if it can prove that the experience is not “substantially comparable” to the job for which certification is being sought. “A substantially comparable job or position means a job or position requiring performance of the same duties more than 50% of the time.” Evidence would include “position descriptions, percentages of time spent on various duties, organizational charts, and payroll records.  The Department of Labor includes both alien “employees” and “contract employees.” The latter category appears to refer to employees whom the employer previously contracted perhaps as independent contractors, but not to the individuals used by a contracting firm that were employed by that entity.

PERM Disallows any Education or Training Paid by the Employer

Although experience may be gained in a different job, an employer may not use any educational or training requirements that it paid for. Presumably this might include educational or training courses in advanced information technology such as Microsoft or other certifications.

“The term ‘employer’ means an entity with the same Federal Identification Number (FEIN), provided it meets the definition of an employer.  Persons temporarily in the U.S. cannot be employers.  PERM appears to allow employers to use experience gained by foreign entities, since presumably they do not have federal FEINS, as well as experience gained while employed with acquired companies, and even subsidiaries and branches of the same employer, as long as the FEINS are distinct.

Layoffs

PERM requires employers to document that it had notified and considered all potentially qualified laid-off US workers within in six months in the area of intended employment. The employer is required to notify and consider those laid-off workers in the occupation for which certification is sought or in a related occupation

The Department of Labor may order post-filing supervised recruitment based on labor market information and may at that time take notice of industry layoffs.

Audit Procedures

The Department of Labor can request an audit of any permanent labor certification either for cause or randomly. If selected for audit, the Employer will receive an audit letter specifically stating the additional documentation to be submitted, set a date 30 days from the date of the audit letter for submission and advise that the application will be denied if the information is not received by the deadline.

Supervised Recruitment

When supervised recruitment is requested by the Department of Labor, either after receipt of an audit response or as part of the mandated supervised recruitment when an Employer has previously failed to respond to an audit letter. The Employer is advised to place an ad in a newspaper of general circulation for three days including a Sunday or for one edition of a professional, trade or ethic publication. The Employer must submit a draft of the proposed ad to the Department of Labor for approval within 30 days of the notification that supervised recruitment is required. The Department of Labor will approve the ad and direct the timing of the advertisement. The Employer shall notify the Department of Labor when the ad will appear.

The approved ad must advise applicants to send resumes or applications to the Department of labor including an identification number and address as designated by the Certifying Officer. The ad must describe the job opportunity including a wage rate that meets or exceeds the prevailing wage rate and summarizes the minimum job requirements as contained in the application form and offer training if the job would normally require the Employer to provide training. The wages, terms and conditions of employment must be as least as favorable as those offered to the alien. The Department of Labor may also require other specific recruitment efforts containing the same information.

Labor Certification Determinations

The decision to grant or deny a labor certification is based on a decision of whether or not the Employer has met the requirement that there are no U.S. workers who are able, willing, qualified and available for and at the place of the job opportunity. The Employer must consider whether a U.S. worker could acquire the necessary skills during a period of on-the-job training.

Request for Review

If a labor certification application is denied, or revoked, a request for review of the denial or the revocation may be made to the Board of Alien Labor Certification Appeals (BALCA) by the Employer. The Request for Review (RFR) is filed with the Certifying Officer (CO) who denied the application and must be filed within 30 days of the date of the determination.

Invalidation of Labor Certification

After issuance, a labor certification may be invalidated by DHS or a Consul of the Department of State upon a determination, either by one of those agencies or by a court, of fraud or willful misrepresentation of a material fact involving the labor certification application

Revocation of Approved Labor Certification

The Department of Labor, in consultation with the Chief, Division of Foreign Labor Certification, may revoke an approved labor certification if he/she finds that the certification was not justified.