New Labor Certification Application Under PERM

In December 2004, The U.S. Department of Labor (“DOL”) published a new regulation regarding the implementation of new system (PERM) for the permanent foreign labor certification. This new system takes effect on March 28, 2005. We explain here the major procedures and requirements under PERM and the information and documents required for filing the application.

Recruitment before Filing the Labor Certification Application

For professional occupation which requires a bachelor or higher degree, the following recruitment work must be conducted at least 30 days, but no more than 180 days, before filing the application:

1. Mandatory Recruitment Steps
   1. Placing a Job Order with State Wage Agency (SWA) for 30 days. (Evidence: Web printout of the start and end date of the job order entered on the application).
   2. Placing advertisement (ad) on 2 different Sunday newspaper of general circulation, or one of them in professional journal if that is the normal practice. (Evidence: Original tear sheets (or complete copy) of the ad page, or proof of publication by the newspaper.)
2. Additional Recruitment Steps (The employer must select 3 of the following 10 alternative steps for additional recruitment; Among the 3 selected steps, 2 of them must be done within 180 day before filing the application; only 1 of them may consist solely of the activities that took place within 30 days of filing the application):
   1. Job Fairs (Evidence: Brochure advertising the fair and newspaper ad in which the employer is named as participant in the job fair);
   2. Employer’s Web Site (Evidence: Dated copies of the web page from the website that advertises the position);
   3. Job Search Web Site (Evidence: Dated copies of the web page from the website that advertises the position);
   4. On-campus Recruiting (Evidence: Copy of notification issued or posted by school’s placement office naming the employer and date of interviews for the position.);
   5. Trade or Professional Organizations (Evidence: Copy of pages of newsletter or trade journal containing ad for the position ;
   6. Private Employment Firms (Evidence: Copy of contracts between the firm and employer and copies of ad placed by the firm for the position.);
   7. Employee Referral Program with Incentive (Evidence: Copy of employer notices or memo advertising the program and specifying the incentives offered);
   8. Campus Placement Offices (Evidence: Copy of employer’s notice of the job opportunity provided to the campus placement office);
   9. Local and Ethnic Newspapers (Evidence: Original tear sheets (or complete copy) of the ad page);
   10. Radio and Television (Evidence: Copy of text of the ad along with a written confirmation from the radio or TV station stating when the ad was aired).
3. Employer’s Internal Job notice 
   Employer must post a Job Notice for at least 10 consecutive business days (2 weeks) at the work location between 30 and 180 days before filing the application.
   For non-professional occupations, only the SWA’s 30-day Job Order, 2 Sunday ads, and internal Job Notice are required.

Recruitment Report

After completing the above recruitment steps, the employer must prepare a recruitment report signed by the employer, including:

1. Describing recruitment steps undertaken;
2. The results achieved;
3. The number of hires (if any);
4. The number of US worker rejected, and categorize the lawful job-related reasons for such rejections;
5. The employer does not have to identify the applicants in the report. However, DOL certifying officer, after reviewing the reports, may request the applicants’ resume or applications, sorted by the lawful job-related reasons the applicants were rejected.

Layoffs

If there has been Layoffs by the employer within 6 months before filing the application, and the layoff involves the occupation sought in the application, or in a related occupation, the employer must notify the layoff worker, and document such notification.

Alien Influence and Control over Job Opportunity.

If employer is a closely held small corporation or partnership, it should prepare all corporate documents ready before filing. In case of auditing, it should demonstrate that the existence of bona fide job opportunity, i.e. the job is available to all U.S. workers.

Filing the Labor Certification Application

After completing the foregoing steps, the labor certification application will be filed electronically or by mail to DOL for approval. As stated by DOL, it will take it about 60 days to process the application.

Employer’s Ability to Pay the Proffered Wage

At the time of filing the permanent foreign labor certification application to DOL, the employer must have the financial ability to pay the proffered wage to the alien worker.

Retention of Documents

All the documents related to this labor certification application must be retained for 5 years from the date of filing.

Auditing Procedures

All the recruitment and related documents are not required to be filed together with the application form at the time of filing. However, in reviewing the application, Certifying Officer may audit the application based on randomly selection for quality control purpose, or review the correct compliance with the application requirements. Therefore, all the documents must be well prepared before filing and keep them for 5 years from the date of fling.

Information and Documents Required for Preparing the Application

See attachments:

1. Employer’s Information Sheet for Foreign Labor Certification Application
2. Information Sheet for Recruitment Report and Documentation
3. Applicant’s Interview Evaluation Sheet (for reference only)

We realize that it will require some time and efforts to compile this information and documentation. However, we believe that thoroughly prepared documentation is the basis of the success of this application.