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Re-engineered Permanent Labor Certification Program (PERM) eta Employment And Training Administration United States Department Of Labor Effective: March.

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Presentation on theme: "Re-engineered Permanent Labor Certification Program (PERM) eta Employment And Training Administration United States Department Of Labor Effective: March."— Presentation transcript:

1 Re-engineered Permanent Labor Certification Program (PERM) eta Employment And Training Administration United States Department Of Labor Effective: March 28, 2005

2 eta History and Background  A labor certification is required prior to petitioning USCIS for permanent residence (“green card”) for certain employment-based immigrant visas  DOL certifies: not sufficient U.S. workers not sufficient U.S. workers no adverse effect on U.S. workers no adverse effect on U.S. workers  Application certified or denied by DOL

3 eta History and Background (continued)  Previous process criticized as: complex complex time consuming time consuming resource intensive resource intensive duplicative duplicative  New system streamlines process

4 eta History and Background (continued)  NPRM on May 6, 2002  Approximately 200 comments  Approximately 1,100 pages of comments  Final regulation responsive to public comments  Final rule published on December 27, 2004  Regulation effective March 28, 2005

5 eta Highlights of Re-engineered Program  Employers must conduct recruitment before filing applications  SWAs provide prevailing wage determinations, but will no longer accept or process permanent applications once the regulation is effective  Employers have the option of web-based filing  Must offer at least 100% of the prevailing wage  Employer retains supporting documentation for audit purposes for five (5) years  Business necessity included in final rule

6 eta General Instructions  Representation by agents or attorneys allowed  Filing options (ETA Form 9089): mail-in mail-in web-based web-based  No facsimile (fax) applications  Pin/Password process for e-filing

7 eta General Instructions (continued)  Applications will be processed in either the Chicago or Atlanta National Processing Center – based upon work state  Incomplete applications will not be accepted or, in the case of paper applications, will be denied

8 Basic Permanent Labor Certification Process

9 eta Filing Date & Re-filing of Pending Cases  Date stamping of applications accepted for processing  Re-filing applications under the final rule must meet final rule recruitment requirements must meet final rule recruitment requirements must be identical application must be identical application current application must be withdrawn current application must be withdrawn  re-file is considered a withdrawal  withdrawal allowed prior to re-filing, must re-file within 210 days re-filed applications may take longer to process than other ETA Form 9089s re-filed applications may take longer to process than other ETA Form 9089s

10 eta Pre-filing Recruitment  Separate Professional and Nonprofessional occupation recruitment requirements  Professional occupations are listed in Appendix A to the Preamble  All occupations not listed in Appendix A to the Preamble are considered non-professional for purposes of this recruitment

11 eta Pre-filing Recruitment (continued)  Placement of job order with SWA  Two Sunday newspaper advertisements – professional journal optional in certain cases  Additional recruitment steps for professional occupations

12 eta Contents of Advertisements  Employer name  Wage rate (optional)  Description of vacancy and geographic area of employment

13 eta Job Opportunity  Business necessity available  No foreign language requirement, unless justified by business necessity  Combination occupations permitted when justified  Alternative experience requirements permitted

14 eta Job Opportunity (cont.)  Job requirements must represent employer’s actual minimum requirements  Alien’s background must satisfy actual minimum requirements  Alien’s qualifying experience cannot be gained with the employer, except in limited circumstances  Definition of “employer” determined by EIN

15 eta Other Requirements  Notification to laid-off U.S. workers by the employer applicant  Prohibition against alien influence and control over job opportunity

16 eta Recruitment Report  Recruitment steps undertaken  Results achieved and lawful reasons for rejection of U.S. workers, as applicable  Maintain resumes/application materials for documentation/audit purposes (5 years)

17 Specific Occupations

18 eta Schedule A Occupations  Physical therapists  Professional nurses  Aliens of exceptional ability in the sciences or arts  Performing artists of exceptional ability – previously special handling

19 eta Other Occupations  Labor certification requirements for sheepherders – direct to USCIS  Optional recruitment and documentation for college and university teachers – alternative recruitment  Live-in household domestic service workers – additional documentation required

20 Permanent Labor Certification Case Processing

21 eta Bona Fides  Employer existence  Sponsorship  Publicly available databases

22 eta Audit Letters  Based on: review of application review of application selection for quality control purposes selection for quality control purposes  Required documentation based upon the particulars of the application – some will be requested by the audit letter  30-day response time for submittal of application documentation – one extension at COs discretion  CO may ask for additional information  Failure to comply, application denied and future applications audited  Application may be denied after review of supplied documents

23 eta Supervised Recruitment Directed by Certifying Officer  Advertising requirements for the job opportunity  Detailed written recruitment report  30-day response time

24 eta Labor Certification Determinations by Certifying Officer  Application either certified or denied  Final notification to employers in writing  Possibility of supervised recruitment up to two years  Employer request for reconsideration or review within 30 days

25 eta BALCA Review of Denials  Request by employer to denying CO by certified mail  Assembly of appeal file by certifying officer sent to BALCA sent to BALCA copy to employer copy to employer

26 eta Consideration by and Decisions of BALCA  Briefs and Statements of Position within 30 days  Notification of decision  Hearings – notification and procedure  No remands  Review on the record

27 eta Substitutions and Invalidations of Labor Certifications  After issuance, subject to invalidation for fraud or willful misrepresentation  Substitution of alien beneficiaries  Issuance of duplicate certifications

28 eta Fraud or Willful Misrepresentation in Certification Applications  If possible fraud discovered before certification, referred to USCIS, DOL Inspector General, etc.  If subject to judicial process, application processing halted  If fraud found, application invalidated and processing terminated  90-day notification period

29 eta Revocation of Approved Labor Certifications  Basis - Certifying Officer finds certification was not justified  Employer receives notice of intent to revoke

30 Prevailing Wage Determination Process for Permanent Labor Certification Purposes

31 eta Process for Obtaining a Prevailing Wage Determination  Request prevailing wage determination from SWA serving area of intended employment on their form  Validity period 90 days to 1 year from determination date  Employers must file their applications or begin recruitment within the validity period specified by the SWA

32 eta Process for Obtaining a Prevailing Wage (continued)  SWA determination sources: CBA when appropriate CBA when appropriate employer provided survey employer provided survey  must meet all requirements listed in the regulations  median acceptable if no mean  DBA and SCA may be utilized by employers – no longer mandatory OES OES  Guidance forthcoming on 4 wage levels  The SWA must consider one supplemental submission concerning the wage determination

33 eta Prevailing Wage Review  Request from employer within 30 days of the determination by the SWA  CO reviews determination based on the record  Employer may request BALCA review of CO determination within 30 days of the date of the decision

34 Application for Permanent Employment Certification

35 eta Form ETA 9089 (pg. 1)

36 eta Form ETA 9089 (pg. 2)

37 eta Form ETA 9089 (pg. 3)

38 eta Form ETA 9089 (pg. 4)

39 eta Form ETA 9089 (pg. 5)

40 eta Form ETA 9089 (pg. 6)

41 eta Form ETA 9089 (pg. 7)

42 eta Form ETA 9089 (pg. 8)

43 eta Form ETA 9089 (pg. 9)

44 eta Form ETA 9089 (pg. 10)

45 eta Address and Contact Information  Employment and Training Administration Office of National Programs Office of National Programs Division of Foreign Labor Certification 200 Constitution Ave., NW C-4312 Washington, DC  DFLC website or  Send questions to


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