Employer Labor Certification Filing using PERM – The possible results that await

Editor's Note: Jennifer G. Parser is a member of the Labor and Employment and Immigration Practice Groups of Ward and Smith, P.A., where her primary focus is on immigration matters. This is the second of a two-part article.

Introduction

Last week's article provided an overview of the steps an employer must take prior to obtaining a labor certification from the U.S. Department of Labor ("DOL") in order to hire a foreign worker for a permanent position in the United States. This week's article addresses the filing of the application and the possible results.

The application for labor certification is the employer's representation that it undertook certain recruitment steps to find a qualified, willing, and available United States worker to fill the position, but was unsuccessful.

Application for the labor certification consists of the filing of ETA Form 9089 ("Form 9089") with the DOL either online using the Program Electronic Review Management System ("PERM") or by mail. Upon receipt of Form 9089, the DOL conducts a review to ensure that employment of the foreign worker will not supplant a qualified and available United States worker, and will not adversely affect the wages and working conditions of similarly employed United States workers. A United States worker is either a United States citizen or a non-citizen who is authorized to be employed in the United States.

The Employer's Attestations

By filing Form 9089, the employer attests to facts such as:

• The position (referred to by the DOL as a "job opportunity") which the foreign worker will fill has been and clearly is open to any qualified United States worker;

• United States workers who applied for the position were rejected for lawful job-related reasons;

• The job opportunity is open for full-time, permanent employment for an existing employee other than the foreign worker;

• Despite good faith recruitment efforts, the employer was unable to find any qualified United States worker willing and available to accept the position at the prevailing wage at its intended location;

• The requirements of the position are those usually required for that position in the United States and are not tailored to match the foreign worker's qualifications;

• The employer is paying at least the prevailing wage for the occupation in the area of intended employment; and,

• The employer will place the foreign worker on the payroll on or before the date of the foreign worker's proposed entry into the United States.

Possible Responses to the Application

Once the Form 9089 has been filed with and reviewed by the DOL, the DOL will respond in one of three ways:

▪ "Certified" – The employer can file an immigrant visa petition for the foreign worker to remain permanently in the United States.

▪ "Denied" – The employer cannot proceed with an immigrant visa petition on behalf of the foreign worker.

▪ "Selected for Audit" – The employer has been chosen by the DOL to be audited or must take some other action before the application will be certified.

Careful preparation of Form 9089 and adherence to all recruitment requirements can help an employer to avoid the possibility that the DOL will deny the application or will select the employer for an audit.

Reasons for Denial or Selection for Audit

Generally, the DOL selects an employer for an audit either through a random selection process or because something in the employer's application triggers the DOL to examine the application closely. Obviously, an employer cannot prevent a random audit. However, carefully following all recruitment requirements and properly preparing the Form 9089 may avoid a triggered audit and will make any audit easier to handle.

Before starting recruitment efforts, the employer must research the DOL database at the O*NET website (online.onetcenter.org) to verify the correct title, skill level, and qualifications required for the particular position. O*NET is the federal government's most comprehensive resource for occupational information and is the authoritative source for confirming normal job requirements and qualifications. The job requirements set forth by an employer in its recruitment efforts should be aligned with O*NET information to prevent an otherwise qualified worker from being disqualified for failing to possess the specific skills listed by O*NET as needed for the position.

The DOL will review matters such as whether the training and experience possessed by the foreign worker at the time of hire meet the employer's minimum requirements and whether the minimum requirements for the position are bona fide according to O*NET standards. The DOL will consider any education or training obtained by the foreign worker subsequent to the time of hire at the employer's expense only if the employer offers similar training to all relevant applicants.

Information That May Trigger a DOL Audit

Employers need to be aware that some position requirements which must be disclosed on the labor application will trigger the DOL to look closely at the application and perhaps select the employer for an audit. One such requirement that is virtually guaranteed to result in an audit is a requirement that the employee be fluent in a foreign language. The employer must be prepared to demonstrate that the position truly requires knowledge of the foreign language, either because of the position itself (i.e., a translator) or because there is a bona fide business need to communicate in a language other than English.

Another triggering disclosure is that the particular position involves a combination of occupations performed by the foreign worker. In order to pass an audit in this instance, the employer must document that it usually hires persons for that position who perform that combination of occupations, and/or that only workers performing that combination of occupations are hired for similar positions in the geographic area where the worker will be located. Multiple-occupation requirements can be documented by letters from other employers stating that similar positions held by their workers in the same geographic area normally require that combination of occupations, and/or by documentation that the multiple-occupation requirement arises from a legitimate business necessity.

Preparing for an Audit

The best way to prepare for an audit is to have performed each step of the recruitment campaign diligently and to have retained detailed documentation of that fact. The employer must create and maintain a final recruitment report signed by the employer or the employer's representative which describes the recruitment steps undertaken, the results achieved, the number of resulting hires, if any, and, if applicable, the number of United States workers rejected with the reasons for such rejections. Copies of all labor certification applications filed with the DOL and all supporting documentation must be retained by the employer for five years after the date of filing the Form 9089. It presently is unclear whether "supporting documentation" also includes retention of applicants' resumes.

Date of Filing is Important

The date an employer first files an application for labor certification, either online through PERM or by mail, is known as the "priority date." The priority date is important because it places the foreign worker in line for the applicable visa under the relevant visa "preference" category, which is determined by the skill level and required qualifications for the position in question. Since there are only a certain number of visas available per preference category, the information supplied about the position in the employer's application for labor certification impacts the visa preference category into which it falls, and also sets the priority date, two important factors which impact later green card filings.

The place of birth of a foreign worker also is important since visas are allocated further by country within each preference category. Certain countries are "over-subscribed," meaning there are no visas available in a given year because too many have been issued for that country's nationals with respect to a specific preference category. No more such visas will be available until the next fiscal year. Only foreign workers with a priority date before the cut-off date will be issued visas, thus making an early priority date important. For employers looking to review specific visa availability by country in each preference category, the U.S. Department of State publishes a monthly visa bulletin showing the number of visas available for each preference category by country, and showing each preference category as being either current ("c") or unavailable ("u").

Conclusion

While a successful labor application is not guaranteed even when all of the steps outlined by the DOL are followed, compliance is necessary if an employer is to successfully hire or retain a valued foreign worker on a permanent basis. Diligence at each step is the best route to receive a coveted "green card" for a foreign worker.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jennifer Parser practices in the Labor and Employment and Immigration Practice Groups of Ward and Smith, P.A., where she concentrates her immigration practice on business immigration, particularly investor visas. Jennifer's practice is limited to Federal Immigration and Naturalization Law. She currently is licensed in New York only. For further information, please contact Jennifer Parser at jgp@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.