THE ALIEN WORKER LABOR CERTIFICATION PROCESS
Effective March 28, 2005, the United States Department of Labor
("DOL") will change the way employers apply for labor
certification and hire potential foreign employees. DOL's
Electronic Review Management ("PERM") Regulations
will initiate a new electronic method for application filing and
processing. Colleges and universities must be aware of the new procedures,
which change the way a labor certification application is initiated,
filed, and adjudicated. The regulations and their procedural changes
are summarized in this NACUANOTE.
Labor certification is a procedure by which many foreign nationals
seek full time, permanent employment and ultimately permanent residency
in the United States
Under labor certification, an employer is required to apply to the
DOL for permission to hire a foreign national to work in a specified
position for which there are no qualified workers available who
citizens. If and when the DOL certifies the application, the employer
may then apply to the United States Citizenship and Immigration
Services ("USCIS") agency for permanent residency on behalf
of the foreign employee.
The Labor Certification System: Requirements - Pre-PERM Regulations.
The 1965 labor certification law  made
foreign nationals ineligible for permanent employment in the U.S.
unless the DOL found:
- At the time of the foreign national's application
for a visa and admission to the U.S., there were not sufficient
U.S. citizen workers who were able, willing, qualified, 
and available to perform the relevant work at the place where
the alien was to perform that work; and
- The employment of such alien
would not adversely affect the wages and working conditions of
workers in the U.S. who were similarly employed.
put the statute into effect, the DOL implemented regulations requiring
employers to survey the labor market to find qualified, available,
and willing U.S. workers  to
work at the offered job. This assessment could be accomplished through
- "Standard" labor certification cases,
wherein applications were processed through the State Workforce
Agency ("SWA"). An employer submitted a labor certification
application including position requirements to the SWA, which
reviewed the application, determined whether the minimum requirements
for the position were appropriate, and if the wage met the prevailing
wage standards. If the SWA was satisfied with the application,
it issued recruitment instructions to the employer. The employer
proceeded to advertise for the position (with direct input from
the SWA), interview, and select the appropriate candidates. The
employer then submitted a recruitment report to the SWA detailing
the hiring process -- including information regarding received
applications, persons interviewed, and the reasoning behind a
hire and the denials. The information was then forwarded from
the SWA to the DOL for a decision; or
- "Reduction in recruitment" cases, where the employer had to demonstrate that it engaged in
a "pattern of recruitment" designed to locate U.S. workers to fill the available
position, and that it was unsuccessful in finding such employees
who were both qualified and available. The "pattern of recruitment"
must have taken place over the six-month period prior to filing
the documentation with the SWA. The employer was also required
to submit a recruitment report detailing the efforts to recruit
U.S. workers for the position and
the reasons behind their denial of employment.
Handling for Teaching Faculty: DOL recommended that colleges and universities seeking
to hire foreign nationals as teaching faculty (for tenured or tenure-track
positions) follow a "special handling" labor certification
process. In this situation, a labor certification application had
to be filed with the DOL within 18 months of a decision to hire.
All applications were required to show that the institution advertised
for the position in an appropriate national journal and that the
employee was the most qualified in the particular field.
Both a local and regional DOL office then reviewed the application.
If no U.S. workers could be found to fill
the available position, the DOL would "certify" or issue
an approval of the application to hire the foreign national.
Because of the lengthy recruitment review
process and the involvement of state agencies and the DOL under
the pre-PERM regulations, the labor certification process was extremely
slow, and could take from months to several years to complete. The
PERM Regulations were issued to remedy these delays.
The Labor Certification System: Requirements
- Post-PERM Regulations. The new PERM Regulations are designed
to streamline the labor certification process. The regulations differ
from the previous rules in several ways:
Prevailing Wage - The employer must
now pay at least 100% of the prevailing wage . This
is a 5% increase over the current regulations. The employer must
submit a prevailing wage request to the SWA. The DOL will maintain
a separate wage survey for colleges and universities.
Prevailing Wage Determination Appeals Process.
If the employer submits a request to the SWA and disagrees with
the determination, the employer may appeal to the PERM Center Director
(although no processing times for these appeals are stated in the
Regulations). If, in the employer's opinion, the re-determination
is still too high, then the employer can appeal the PERM Center
Director decision to the Board of Alien Labor Certification
Appeals within 30 days of the re-determination. If the employer
disagrees with the Board's determination, the employer may choose
to utilize the DOL's online salary survey, including its newly designed
four-tier wage determination scale , or
the employer may also submit alternate wage data from a qualifying
survey (although the latter methods not involving a direct request
to the SWA may delay certification). The wage survey must meet the
criteria of the DOL General Administration Letter No. 2-98  to
be considered an appropriate wage survey.
Minimum Position Requirements - The
DOL will no longer use Specific Vocational Preparation levels as
the measure of the "minimum requirements" for a position.
The DOL will now utilize the Occupational Information Network ("O*NET")
"Job Zones" to determine the standard minimum requirements
for a position. The O*NET is a comprehensive database of worker
attributes and job characteristics. The 974 occupations in the O*NET
database are related to a common framework that describes job requirements
and worker attributes, as well as the content and context of work
using over 275 descriptors. The O*NET database is in compliance
with the current federal mandate to follow the Standard Occupational
Recruitment - Employers are still required
to search the labor market for qualified U.S. workers for a given position.
Under PERM, however, the DOL will not monitor
an employer's recruitment effort after an application is filed (absent
situations where a case is audited). The new regulations require
employers to post notification , including
using any and all "normal" means of in-house media typically
used to alert employees of position openings within the company.
Additionally, employers must place a job order with the SWA that
will remain open for a 30-day period and also are required to place
advertisements . For
"professional" positions, additional forms of recruiting
are required .
Special Handling Recruitment.
The special handling provision for teaching faculty has been removed.
The employer may now recruit for college and university teaching
faculty under the basic PERM labor certification process
(the same process used for hiring other employees) or elect
to have the case handled as an "optional recruitment"
matter. Under section 656.18
of the Regulations dealing with optional special recruitment and
documentation for teaching faculty, recruitment documentation must
- A statement from an authorized official outlining
the recruitment process including the number of applicants and
specific lawful job-related reasons why the foreign national was
more qualified than others;
- A final report selecting the foreign national;
- At least one print advertisement in a national
journal to contain the job duties, title, and requirements;
- Other recruitment evidence; and
- A statement attesting to the
foreign national's qualifications.
for college and university teachers of exceptional ability in the
sciences and arts 
are covered in sections 656.5
of the Regulations.
Recruitment Report. Employers are required
to maintain recruitment reports and documentation of recruitment
for five years from the date of filing. The report must be signed
by the person normally required to review applicants and must describe
the steps, results, and number of applicants (including the reason
for rejection) in the recruitment process .
Filing - Applications may be filed
directly with DOL electronically  or
via mail .
The DOL has indicated that electronic filing is the preferred method.
An employer that files electronically will receive an electronic
response. If filing by mail, the employer must sign the applications
prior to filing, and will receive a response by mail.
Timing - DOL states that applications
will be adjudicated within 45-60 days, with a determination of approved,
audited, or denied .
The rule requiring an employer to wait six
months after the denial of a labor certification application to
re-file for the same position has been eliminated. Upon denial,
employers may immediately file a new application for the same position.
As a result, the DOL will no longer issue "Notice of Findings."
Revocation - Ultimately, the DOL maintains
the right to revoke any case "for cause"  for
at least five years from the filing date of the application, and
may revoke approved applications on any ground indefinitely.
So how do you process a labor certification
application under PERM?
- An employer determines the appropriate prevailing
wage for an available position using one of the methods noted
above and then conducts a recruitment process.
- Finding no qualified, available U.S. workers for the position (or
in the case of teaching faculty, finding the foreign national
is more qualified), the employer completes a labor certification
application and submits it either electronically or via mail directly
to the DOL.
- Barring a recommended or randomly
selected audit, the DOL will issue a determination within 45 to
to do on March 28, 2005 if you have already filed
a labor certification application. If you have already filed a
labor certification application and are awaiting a decision when
the PERM rules go into effect, you have
- Your case proceeds under the pre-PERM rules.
If you filed your application according to the "standard"
or "reduction in recruitment" method, your case will
proceed under the rules established for those cases; or
- You can withdraw your existing
application and re-file under PERM - Conversion. An employer is
allowed to preserve the original filing date of a labor certification
application filed before the implementation of PERM if and only if the re-filed
application under PERM is for an identical
position. The duties, title, and requirements of the pre-PERM
labor certification application and the PERM application must be the same
for the employer to maintain the original filing date. The employer
must withdraw and re-file under PERM within 210 days. All conversion
cases must comply with PERM recruitment and prevailing
wage standards. A conversion filing will be delayed as the DOL
will need to locate the original filing to compare the job duties
and ensure the positions are "identical."
do you select an option?
- With the recent backlog of visa availability
in the third employment-based preference category for foreign
nationals born in India, China, or the Philippines, and the probability
of further backlogs in this category for all nationalities, the
loss of the original filing date would be very detrimental, and
could result in an individual remaining in the "green card"
process for several years. Therefore, preserving the original
filing date may be a strong consideration in your selection of
an option above.
- The DOL has created backlog reduction centers
("BRCs") for pending labor
certification applications. DOL's goal
is to eliminate its current backlog of applications within the
two-year period that these centers are funded. To that end, only
those applications filed within states with current case backlogs
and not yet opened (no processing initiated by the SWA or DOL)
will be forwarded to the BRCs. DOL will issue "45-day" letters to
confirm that the employer, job offer, and foreign national all
remain as stated in the filing. The reduction procedure is centered
on a strict "First-In, First-Out" policy, based on the
original filing date of the labor certification application. Thus,
this DOL backlog reduction process may also be a consideration
in your selection of an option above.
- The conversion rules do not
discuss whether maintaining the original filing date will also
maintain an H-1B individual's ability to obtain a seventh year
of H-1B stay based on the previous pre-PERM labor certification
filing (assuming that it was filed at least 365 days prior to
the date the individual's six-year period of stay expires).
The PERM Regulations are a significant development in the labor
certification process. College and university administrators with
responsibility for hiring foreign staff members along with those
hiring foreign teaching faculty should become familiar with these
new procedures for filing and processing labor certification cases.
Pending applications should be reviewed to determine if conversion
to PERM processing is a viable option. New applications must take
account of the new procedures set forth in the regulations.
RESOURCES FOR COUNSEL:
• 20 C.F.R. Parts 655
PERM: Labor Certification
Department of Labor General Administration Letter No. 2-98 (January
U.S. Department of Labor Resources:
Department of Labor Publishes Final Permanent Labor Certification
Regulation (news release, December 27, 2004)
Hiring Foreign Workers (Foreign
Labor Certification Overview)
Labor Certification Data Center (including Occupational Employment
Statistics Program information)
PERM Processing Centers
the Foreign National Scholar or Faculty Member, March 3-5 2004,
Karen Weinstock and Russell C. Ford
Law Issues and Strategies for University Research Operations After
September 11th, October 30-November 1, 2002, Laura W. Khatcheressian
Nationals as Faculty: The Usual Progression, March 21-23 2002, Thomas
Foreign Nationals as Faculty: Representation Issues for Higher Education
Immigration Attorneys, March 21-23, 2002, Jeffrey C. McLellan
Foreign Nationals-Opportunities and Pitfalls, June 28, 2000, Enrique
Law: Faculty and Staff Issues by Laura W. Khatcheressian,