Curran & Berger LLP

Alien Labor Certification is a process by which an employer may sponsor an employee for permanent residence. There are no jobs that cannot qualify for Labor Certification. The goal of the Labor Certification Process is to make sure that foreign workers are not taking jobs from qualified U.S. workers. The actual standard is that Labor Certification will be granted if there are no U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

On March 28, 2005, the Department of Labor (DOL) instituted a new web-based system for filing labor certification applications, called “PERM.” Applications are now filed electronically.

The required recruitment consists of two print advertisements in the Sunday paper of largest circulation and three additional forms of recruitment for professional jobs. The list of permitted additional recruitment steps include: (1) job fairs; (2) employer’s web site; (3) job search web site other than the employer’s; (4) on-campus recruitment; (5) trade or professional organizations; (6) private employment firms; (7) employee referral program, if it includes identifiable incentives; (8) use of a campus placement office; (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) radio and television advertisements.

The pre-filing recruitment efforts must be conducted within a six-month window. Documentation of these efforts (advertisements, resumes, recruitment report, etc.), as well as evidence of the required internal posting notice (including “in house media”), state job order, and prevailing wage determination, is not submitted directly to the DOL at time of electronic filing. Rather, all documentation must be maintained in a compliance file and submitted only upon DOL request (“Audit”).

PERM applications may be subject to “Audit” based upon DOL “red flag” criteria or random selection. If the case is audited the DOL may require submission of all or part of the PERM compliance file within a thirty day period. Such documentation may include evidence of recruitment, the recruitment report, all resumes received and reasons for disqualification, and/or further information on the sponsoring-employer. Failure to respond to an Audit request will result in a denial of the application and DOL-supervised recruitment for a two-year period. If the DOL finds the documentation satisfactory, the case should be approved.

The Department of Labor published a final rule prohibiting employers from seeking or receiving payments or reimbursements for attorney’s fees, costs and expenses in connection with the employer’s portion of the labor certification application, and prohibiting any payment of attorney’s fees by the employee in dual representation situations. As a result, the sponsoring employer will need to assume all costs associated with the PERM labor certification application process. This rule has been in effect since July 16, 2007.

For more background on the DOL prevailing wage system, please see:  http://www.nafsa.org/uploadedFiles/OESWagesAdvisory.pdf

For information detailing the attorney/employer relationship, please view the following article from the Department of Labor:  Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule.