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.

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 letter.

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.

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.

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:

1. 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).
2. An ad on the employer’s own website.
3. An ad in a newsletter or journal published by a trade organization.
4. Local or ethnic newspaper (in addition to Sunday ads in major metropolitan newspaper).
5. Placement agency (headhunter).
6. Campus recruitment.
7. Campus placement office.
8. Employee referral program with incentives.
9. 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 automatically.)
10. Job fair.

The recruitment must occur no more than 6 months and at least 30 days before filing the application.

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.

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.

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 Specialization