PERM Changes Labor Certification
By James A. Bach*
A labor certification ordinarily is the
first step in obtaining permanent residence status based on
employment. Essentially, it is a determination
by the Department of Labor ("DOL") that there is a shortage
of U.S. workers who are available for the job held by the
applicant. Traditionally, this determination was based on
recruitment (advertising for U.S. workers) that was
supervised by a state job office. Before granting the labor
certification the DOL would review the recruitment and
response, a process that in the past would often take several years.
Overview of PERM Procedure
The PERM regulations, issued December
27, 2004, radically changed this procedure and make it much
faster. PERM requires employers to conduct recruitment,
without government supervision, before filing the
labor certification application. The one-page application
summarizes the recruitment conducted and the response
(including the number of workers who applied), and it can be
filed electronically. After a short period of review, the
DOL will either approve the application or issue an audit
The audit letter will request a copy of
the résumés received in response to the recruitment, and an
explanation as to why the applicants were not hired. The DOL
may also require in some selected cases "supervised
recruitment" similar to the traditional system. However, the
DOL plans to approve the vast majority of cases without an
audit letter or supervised recruitment.
Once the labor certification application
is approved, an immigrant visa petition (I-140) must be
filed with U.S. Citizenship and Immigration Services (USCIS)
within six months. If the I-140 is not timely filed,
the labor certification is revoked.
An application for adjustment of status
(I-485) can be filed at the same time as the I-140 if the
applicant's priority date is current (see related articles
on priority dates). Otherwise, the I-140 must be
submitted by itself, and the applicant must wait until his
or her priority date is current before filing the I-485.
Required Recruitment for Nonprofessional
Labor certification recruitment will be
easiest for jobs that do not require a college degree (for
example, carpenters or cooks). In those cases, required
minimum recruitment consists only of a 30-day job order at
the state job office (in California,
http://www.caljobs.ca.gov) and an advertisement in the
major metropolitan newspaper on two different Sundays.
Required Recruitment for Professional
For those jobs that require a college
degree, the required recruitment is more extensive. Like the
recruitment for the non-professional positions, mandatory
recruitment includes a 30-day job order and two Sunday
newspaper ads (although in some cases an ad in a
professional journal can take the place of one of the Sunday
ads). In addition, the employer must conduct three
of the following types of additional recruitment:
- An ad on the newspaper’s website (usually the
newspaper will run a web-based ad for no additional charge
in conjunction with the required Sunday ads).
- An ad on the employer’s own website.
- An ad in a newsletter or journal published by a trade
- Local or ethnic newspaper (in addition to Sunday ads
in major metropolitan newspaper).
- Placement agency (headhunter).
- Campus recruitment.
- Campus placement office.
- Employee referral program with incentives.
- An independent job search website. (Generally we have
found that large commercial job search websites such as
Monster.com are not very useful because they often yield
hundreds of résumés, with many submissions generated
- Job fair.
The recruitment must occur no more than 6
months and at least 30 days before filing the application.
Audits and Supervised Recruitment
In all cases the DOL will make sure that the employer
exists and has employees. In addition, a few cases will be
selected for audit. The application itself may trigger the
audit based on the DOL’s selection criteria, or the audit
may be random. If the employer is a closely held
corporation, or if the employee is one of a small number of
employees, the employer in the event of an audit must also
demonstrate that the job is a bona fide job opportunity.
No Employer Penalties or Fines
Although the proposed regulations suggested penalties and
fines for employers who make misstatements in the
application, the final rule does not add any new penalties
or fines. Note, however, that it is still a crime to
knowingly make any false statement on any government
application. Also, if the DOL determines that the employer
made a false statement in the application, or failed to keep
adequate documentation of the recruitment, the employer may
be required to conduct supervised recruitment in future
cases for a period of two years.
Labor Certification Approval Can Be
Revoked At Any Time
Even though there is no additional penalty or fine for
employers, the PERM regulations provide for revoking an
approved labor certification at any time, even after the
employee is a permanent resident, if either the DOL or USCIS
determine that the labor certification was improperly
granted. It is therefore the immigrant employee, not the
employer, who bears the risk that the recruitment is
conducted properly and that all of the statements in the
application are true.
This article summarizes the most important aspects of
PERM. However, you can
click here to review the full text of the regulations
themselves. That might be much more information than you
need (a 97-page document with very small print!), but you
can skip the DOL comments and go right to the regulations
themselves by starting on page 62.
* Certified Specialist in Immigration and
Nationality Law, State Bar of California Board of Legal