Goulder Immigration Law Firm

Labor Certification

Labor Certifications

Prevailing Wages
Generally, the changes and clarifications related to the employer's obligation to pay the “prevailing wage”.  The 5% variance is no longer allowed.

Use of Four Skill Levels
Governmental surveys such as the OES shall provide for 4 levels of wages commensurate with experience, education, and the level of supervision. If only two levels are currently provided, two new levels can be created by dividing by 3 the difference between the two levels offered, adding the quotient obtained to the first level, and subtracting that quotient from the second level.

Use of Alternate Surveys
Employers may continue to use private surveys as alternative sources for determining the prevailing wage as long as the survey complies with the regulation. The State Workforce Agencies ("SWA's") are encouraged to maintain records of approved surveys and to keep review of previously accepted surveys to a minimum.

Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living Allowances
These items are included in the OES wage data. Under current policy, they can be included in determining the wage offered by the employer as long as such payments are guaranteed by the employer, and are thus not discretionary. However, if the wages are based on commissions, bonuses or other incentives, an employer must guarantee a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage.

Timing of Payment of the Prevailing Wage 
The prevailing wage must be paid either from the time permanent residency is granted or from the time the alien is admitted to take up the certified employment.
Offered Wage Not Required in Recruitment Except for Internal Posting 
The regulations do not require that the offered wage be included in the recruitment efforts. The offered wage must be included in the employer's internal posting of the position, but a range is permitted as long as the bottom is 100% of the prevailing wage, and the range must include the "offered wage," i.e. the wage offered to the alien at the time the labor certification is filed.

Schedule A Occupations Require a PWD and Posting
Positions for certain occupations require that a Prevailing Wage Determination ("PWD") and an internal posting listing the prevailing wage is required.

Prevailing Wage Determination Response Time
The SWA’s are expected to respond expeditiously to request for wage determinations but no specific timeframes were imposed.

Validity of Prevailing Wage Determinations
The PWD's are valid for no less than 90 days and no more than one year from the date of the determination.

Validity Period Related to Commencement of Recruitment and Filing
Employers must file their applications or commence the recruitment within the validity period specified by the SWA.

Review of Prevailing Wage Determination
If the employer disagrees with the PWD, it may file supplemental information, or file a new PWD. (There are also limited appeal circumstances).

Filing Supplemental Information
Employers may only submit supplemental information one time. An employer may choose to file an alternate survey with the PWD but if it submits it after an adverse determination.  In the event of an adverse PWD determination, an employer may submit an alternate survey which does not count as the one time submission of supplemental information. Supplemental information may be supplied to the SWA related to the choice of skill level, or erroneous selection of occupational category, or issues related to the rejection of the employer provided wage survey.

File a New PWD
Filing a new PWD may be done at any time. The filing of a second alternative survey will be considered as a new request and a new review period will be initiated.

Pre-filing Recruitment Steps

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, as 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. As required by IMMACT 90, the notice must say that any person may provide documentary evidence bearing on the application to the Certifying Officer.

Use of Other In-House Media
In addition to printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. Employers are not required to list executive-level positions in in-house media if it is not normal practice to do so. Duration of the in-house media notification may be as long as other comparable positions are posted.

Job Order
The employer must place a job order with the SWA for a period of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.

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 days, but not more than 180 days before filing. The ads may be placed on consecutive Sundays. If the job is located in a rural area with no Sunday edition, the employer may use the edition with the widest circulation. The use of a suburban newspaper on a day other than Sunday is not allowed. 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 the name of the employer, 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), and 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. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer's physical address is not required. A central office or post office box may be designated for receipt of resumes.

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 
Applications for professional jobs require additional recruitment efforts. 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; or (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; and (10) radio and television advertisements. 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 regulation 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 usual education requirement. DOL 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. However, the employer may also use the additional recruitment steps for other occupations. It may be a good idea to do so to bolster a claim that a non-listed occupation is also professional in nature.

Recruitment Report
The employer must prepare a recruitment report that describes the recruitment steps taken and the results. The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection. The Certifying Officer ("CO") 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. Employers are not required to identify the individual U.S. workers who applied for the job opportunity.

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.

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

How and Where to File--Basic Process
Using the form “Application for Permanent Employment Certification (ETA 9089)”, employers can file either electronically or by mail to the appropriate ETA processing center. Submission by fax is not permitted.

Electronic filing 
A priority date will be assigned as of the date the electronic submission is accepted for filing. Incomplete applications will not be processed, but simply denied.

Filing by mail
Applications can be mailed directly to the appropriate centralized processing center.  Applications filed by mail must bear the original signature. A priority date will be assigned as of the date of receipt, provided the form is accepted for filing.

Supporting documentation 
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 Certifying Officer ("CO") otherwise requests certain documents. The documentation, along with a copy of the ETA form, must be retained for five years from the date of filing ETA 9089.

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 state-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, to be furnished to ETA in the event of an audit.

Inclusion of Attorneys' Fees
Attorney fees are discussed in reference to the beneficiary's financial involvement. If the beneficiary is "required" to pay attorney fees, it is possible the position will be challenged as to whether or not the job is open to U.S. workers.

Filing Fees 
There is no filing fee. Unless Congress enacts legislation authorizing a fee, labor certification filing fees are not permitted.

Live-In Domestic Workers - Special Rules
The basic filing procedures apply to live-in domestic workers with more stringent  documentation requirements. Supporting documents should not be filed with the ETA, but should be retained in the employer's files in the event of an audit upon request by the Certifying Officer.

The following three documents must be maintained:

• A statement describing the worker's living accommodations, including whether the residence is a house or apartment, number of rooms, number of adults and children in household, and free board and a private room is provided.
• Two copies of the employment contract. Contract must include hourly/weekly wage, daily and weekly hours to be worked, worker's freedom to leave premises during off-hours (except that overtime pay will be provided), worker will reside on employer's premises, total amount of money to be advanced to the worker, worker not required to give more than two weeks¿ notice, employer must give worker at least two weeks notice of intent to terminate employment, a copy of the contract has been given to the worker, private room and board provided, any other agreement or condition not specified on the ETA form.
• Documentation of worker's paid experience amounting to at least one year of full-time employment.

Audit Procedures
The Certifying Officer ("CO") of the PERM Processing Center 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. If the employer does not respond as required, this will be considered a refusal to exhaust administrative remedies and no review is available either administratively or judicially. At the discretion of the CO, the Employer may also be required to conduct supervised recruitment for any future labor certification filings for up to 2 years. The CO may grant one extension up to 30 days from the initial 30 period in which to respond to the audit letter. After receipt of the response from the Employer, the CO may also request additional information and/or documentation or require that the Employer conduct supervised recruitment.

Supervised Recruitment
When supervised recruitment is requested by the CO, 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 requirements are similar to supervised recruitment under the old basic procedure. 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 CO for approval within 30 days of the notification that supervised recruitment is required. The CO will approve the ad and direct the timing of the advertisement. The Employer shall notify the CO when the ad will appear.

The approved ad must advise applicants to send resumes or applications to the Certifying Officer 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 CO may also require other specific recruitment efforts containing the same information.

The recruitment report must be submitted within 30 days of the CO's request for the report. The Employer must submit a detailed written report signed by the Employer and contain the following specific information:

• Identify each recruitment source by name and document contact by letters to sources such as unions, trade associations and colleges and universities with responses if any.
• Ads should be documented with tear sheets, publication affidavits or dates copies from web pages.
• Also include the number of U.S. workers that responded with names, addresses and resumes except for those who sent resumes to the CO and specify number of interviews and job title of person who conducted the interview.
• Specific lawful job-related reasons for not hiring each U.S. workers must be provided. If an applicant is rejected because of lack of skills to perform the job duties, additional documentation must be provided that the applicant could not acquire the skills during a reasonable period of on-the-job training.

If the Employer does not respond within the 30 days, the CO shall deny the application. The CO has discretion to grant one extension to the Employer.

Revocation of Approved Labor Certification
The CO, 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. The CO must send the Employer a Notice of Intent to Revoke containing a detailed statement of the grounds for revocation and the time period allowed for the Employer's rebuttal. The Employer has 30 days within which to submit a response. If the Employer fails to submit a rebuttal, the Notice of Intent to Revoke becomes final. If the Employer files rebuttal evidence and the CO determines the certification should be revoked, the Employer may file an appeal The CO must inform the Employer within 30 days of receiving any rebuttal evidence whether or not the labor certification will be revoked. If the labor certification is revoked, the CO will send a copy of the notification regarding the revocation to the DHS and the DOS.