The first step towards immigrant application petition for alien worker involves obtaining labor certification from department of labor. The process is usually referred to as PERM which can be abbreviated as Program Electronic Review Management. There are several complicated steps involved in the process of obtaining labor certification. Complications can increase depending on the beneficiary education and work profile. It is in the best interest of the petitioner employer to seek attorney help for PERM labor certification purposes. Below information covers only the basic outline of the labor certification process.
Prevailing Wage Determination (PWD)
It is always best practice to get prevailing wage information for the proposed job position before going through the recruitment process. It gives you a sense of where the petitioner’s foreign worker credentials fit into the regulatory requirements. A wage determination is valid for no less than 90 days and for up to one (1) year. Within one (1) year, the recruitment process and ETA form 9089 can be certified, unless there are additional queries from case officer and any “supervisory recruitment” issues due to petitioning employer’s prior conduct. If the entire process takes more than one (1) year, you may need another P.W.D. but at least you know which category the proposed permanent job fits into and would not cause problem related to recruitment issues because you know the boundaries of the proposed job under DOL criteria.
The petitioning employer can obtain the Prevailing Wage Determination from labor department’s National Prevailing Wage Center (NPWC). The wage determination can be done from multiple sources such as DOL data, employer’s own data, industry data, published wage data, private wage surveys. DOL usually relies on Occupational Employment Statistics (OES) where the wage rates are determined based on the survey conducted by Bureau of Labor Statistics (BLS). The wage levels are set based on the job title, duties, education required, any experience needed, and the geographical location of the work location. This can be any thing from Wage level I-IV. The work location is the area of intended employment with county name or city acting as the boundary of the area. DOL uses Standard Occupational Classification (SOC) in preparing information for the relevant occupational information included in the O*NET database.
For a stated OES/ SOC code and title, there will be a job zone assigned for a O* NET occupational title. A particular SOC code can be assigned to any of the following job zones including:
Job Zone 1—Occupations That Need Little or No Preparation. (SVP Range: Below 4.0) Job Zone 2—Occupations That Need Some Preparation. (SVP Range 4.0 to < 6.0) Job Zone 3—Occupations That Need Medium Preparation.(SVP Range: 6.0 to < 7.0) Job Zone 4—Occupations That Need Considerable Preparation.(SVP Range: 7.0 to < 8.0) Job Zone 5—Occupations That Need Extensive Preparation. (SVP Range: 8.0 and above)
Each of the job zones above has its own education and experience requirements along with Specific Vocational Preparation (SVP range), which will be discussed below.
SVP estimate range can be described as the amount of time required to acquire information and develop skills needed, learn the techniques for average performance in the occupational category.
Time level required:
Level 1: short demonstration only. Level 2: anything beyond short demonstration up to and including one month. Level 3: over one month up to and including three months. Level 4: over three months up to and including six months. Level 5: over six months up to and including one year. Level 6: over one year up to and including two years. Level 7: over two years up to and including four years. Level 8: over four years up to and including 10 years. Level 9: over 10 years.
Education equivalency to SVP time level:
Bachelor’s degree- 2 years of experience for SVP purposes.
Master’s degree- 2 years of experience for SVP purposes in addition to the bachelor’s degree acquired time.
Ph.d (Doctorial degree)- 3 years of additional experience in additional to the time acquired for bachelor’s & master’s degree.
Mismatch in “job position posting requirement” between job title, duties and SVP level:
Greater threshold requirement in the form of job duties and experience required for a particular SVP level and job zone will be considered “excessive” for a bona fide job opportunity purposes by the DOL. The petitioning employer may justify this by stating that this is a “business necessity.” There is a greater chance of audit by DOL for “business necessity” cases leading to longer PWD certification process.
Recruitment- full-time permanent job
The proposed job position needs to be for a full-time permanent job. As per DOL, full-time usually can be anything from 35-40 hours. The job must be located at a physical location in the United States, along with some business in existence, sales, employees,or any imminent plan to commence business. The employment should not have a future termination date or at-least the employer must be committed to employ the beneficiary for a period of no less than one (1) year. The petitioner employer present intent to not terminate the employment is crucial. For beneficiaries who work at 3rd party clients sites, the petitioning employer need to show that the company has several contracts or projects in the pipeline with other clients. Documentary evidence must be kept in file, and will be useful in the case of an audit.
Recruitment-bona fide job opportunity
There must be a bona fide job opening available to U.S. worker to apply and get hired before a labor certification can be approved. The employer must make a good faith effort to hire the US worker.The employer need to consider the applicants applying under the recruitment process. The employer can also show it is a bona fide business entity, if it hired workers in a similar position for full-time permanent job.
Business necessity- two(2) part test
Business necessity as outlined in the PWD section can be demonstrated by the petitioning employer by showing that the requirements: “(1) bear a reasonable relationship to the occupation in the context of the employer’s business, and (2) are essential to perform, in a reasonable manner, the job duties as described by the employer.” Information Industries, (88-INA-92, February 9, 1989) (en banc). The employer need to document with evidence regarding the business necessity in case of an audit by DOL.
Advertising requirements for job posting
PERM requires at-least two (2) print advertisements for labor certification purposes. At-least one ad on two different Sundays in the newspaper of general circulation in the area of intended employment. For professional positions, second ad can be replaced by an ad in the professional journal related to the intended employment. Both of these ads must be placed for more than 30 days but no more than 180 days before filing the application. There are additional three (3) recruitment steps need to be conducted by the petitioner out of the 10 (ten) possibilities outlined by the DOL for recruitment purposes. I did not outline those here for space purposes.
Upon audit, if the DOL determines that the petitioner substantially failed to provide any business necessity or any related documentation due to excessive requirements for job position, then a supervised recruitment for a period of two (2) years from the date of denial of this petition may be ordered.
DOL ETA Form 9089 & Certification
Upon completion of the form after recruitment, with no material misrepresentation, the case officer from DOL will certify the PERM labor. The certified labor form is valid for 180 days. The petitioner is advised to apply for I-140 (immigrant petition for alien worker). The date of application to DOL, which leads to the certification is the beneficiary’s “priority date,” for current date and immigrant visa number availability purposes.