Labor Certification Recruitment Process Under PERM
The PERM labor certification process is used to test the U.S. labor market for potentially qualified U.S. workers to fill a foreign national's proposed permanent position. As described below, the PERM regulations provide employers with very particular instructions regarding the recruitment of potentially qualified U.S. workers. Employers seeking to sponsor college or university teachers, live-in household domestic service workers or "Schedule A" employees, such as physical therapists or nurses, are subject to unique requirements which are not specifically covered below.
As part of the recruitment process, the sponsoring employer is required to take certain mandatory steps to advertise the foreign national's position. The mandatory recruitment steps include a State Workforce Agency (SWA) job order and Sunday newspaper advertisements. Specifically, the employer must post a job order (position advertisement) with the SWA serving the area of intended employment for a minimum of 30 days. Additionally, an advertisement must appear in two editions of the Sunday newspaper of general circulation in the area of intended employment. The newspaper advertisements must include:
- The legal name of the employer;
- Directions asking applicants to send their resumes to the employer; and
- A description of the job opportunity, including the geographic area of employment.
The newspaper advertisements cannot contain a wage lower than the prevailing wage for the position, any job requirements or duties not listed in the ETA 9089 application, or terms and conditions of employment that are less favorable than those offered to the foreign national.
If the position is one which would normally be advertised in a professional journal, the employer may post an advertisement in the appropriate professional journal in lieu of one Sunday newspaper advertisement.
Further, notice of the employer's intent to file an application for labor certification must be provided to the bargaining representative. If no bargaining representative for the occupation exists, a general notice must be posted. The notice should be clearly posted in a conspicuous location for 10 consecutive business days and contain the following information:
- State that "notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity";
- State that "any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor";
- The address of the appropriate Certifying Officer; and
- State the rate of pay for the position, which must be at least the prevailing wage for the position as determined by the SWA.
Notice is to be provided at least 30, but no more than 180 days before the filing of the application for permanent labor certification. If the employer normally uses in-house media (electronic or print) to post jobs, the notice has to be published in the in-house media for 10 consecutive business days as well.
Employers are required to complete three additional recruitment steps beyond the mandatory recruitment. The employer can choose from the following additional recruitment options:
- Job fairs;
- Employer's website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firms;
- Employee referral program with incentives;
- Campus placement offices;
- Local and ethnic newspapers; or
- Radio or television.
There are no guidelines from the DOL regarding the required duration for the additional recruitment steps. Employers are left to their best judgment as to what qualifies, in good faith, as a sufficient period of time to recruit potentially qualified U.S. workers.
The PERM regulations contain obligatory waiting periods which are intended to allow U.S. workers time to apply for the advertised position. Notwithstanding the required advertising and posting periods, the employer must wait an additional 30 days after the last recruitment step has taken place to file the ETA 9089 application. The only exception to this rule is that one additional recruitment step may take place within the 30 days prior to filing. However, none of the recruitment steps may have taken place more than 180 days prior to the filing of the ETA 9089.
At the close of recruitment and prior to filing the ETA 9089 application, the employer must draft a recruitment report. The recruitment report, which is signed by the employer, details the recruitment steps undertaken, the results achieved, the number of hires and the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The regulations mandate that copies of the ETA 9089 and all supporting documentation be retained by the employer for 5 years from the date of filing.