Aliens seeking Lawful Permanent Resident ("Green Card") status in the U.S. on the basis of an offer of employment must first have their employer, or prospective employer, obtain a Labor Certification (LC) on their behalf. Labor Certification is appropriate only if the employer expects to employ the alien beneficiary permanently or indefinitely, rather than for a fixed, temporary period of time. However, aside from any contractual agreement which the employer may enter into with the employee, the employer does not become obligated to continue the alien's employment for any particular length of time as a result of filing an Application for Labor Certification, and in fact may elect to withdraw or discontinue the Application at any time.

Nature Of Labor Certification

A Labor Certification is a finding made by the Certifying Officer of the Department of Labor. To qualify, the employer must demonstrate that he is unable to locate a U.S. worker who meets the minimum qualifications for the position while offering prevailing wages and working conditions. The term "U.S. worker" includes both U.S. citizens and Resident Aliens. This is accomplished by "testing" the labor market in accordance with guidelines mandated by the Labor Department. Strict compliance with every aspect of the regulations is required.

The Labor Certification Application

An Application for Labor Certification must be prepared which solicits complete information about the job offered. The Application must be prepared with great care to insure that the job requirements are fairly and accurately stated. Under the new PERM regulations, the Application is filed electronically after specific recruiting efforts have been conducted and the employer has demonstrated that no qualified U.S. worker was identified. The Application is signed by both the employer and alien beneficiary after approval by Department of Labor.

Minimum Job Requirements

The Labor Department will scrutinize the minimum requirements set forth for the position very carefully to insure that they are reasonable, customary, and absolutely necessary to perform the job. They will object to any unnecessarily restrictive requirements, which appear to "tailor" the position to the alien beneficiary to the detriment of otherwise qualified U.S. workers.

Ordinarily, it is not acceptable to require experience or knowledge acquired by the alien beneficiary with the petitioning employer. The Labor Department insists that the job be offered to U.S. workers on the same terms that it was originally offered to the alien beneficiary. In some cases, however, it is possible to require experience gained with the employer if either:

• Due to a change in circumstances, it is no longer feasible to offer the position on the same terms that it was originally offered to the alien beneficiary, or
   

• The alien was hired in or contracted to work in a different job for the employer, with proof that the job in which the alien gained the experience is not substantially comparable to the job for which certification is being sought. A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

The new regulation defines “employer” narrowly to include only entities with the same Federal Employer Identification Number (FEIN). This narrow definition actually expands the possible useable experience for foreign nationals by allowing experience gained abroad with a foreign related entity or even a related US entity so long as the FEINs are distinct..

Prevailing Wage

The employer must offer to pay the "prevailing wage" to the alien. The prevailing wage is the amount paid by similar employers to U.S. workers who meet the minimum requirements for the position. The DOL believes that if the employer is paying substandard wages, the labor market is not being properly tested. If upon submission to the local State Workforce Agency (SWA), the wages offered are insufficient, the employer will be given an opportunity to:

• Increase the wage offer to meet 100% of the SWA standard (a change from prior regulations allowing payment of 95% of prevailing wage), or
   

• Obtain and submit labor market data to prove that the SWA determination of the prevailing wage is incorrect. A private wage survey may be submitted if acceptable under DOL standards.

Under the new PERM regulations, employers are required to submit a prevailing wage determination issued by the relevant State Workforce Agency (SWA). In Massachusetts, for example, the office is referred to as the Division of Career Services.

Ability To Pay The Wages

The Department of Labor normally accepts at face value the employer's implicit representation in filing the Application that he can afford to pay the wages offered. However, the employer must be prepared to submit financial information to Citizenship and Immigration Services (CIS) at the time of filing the visa petition proving that he had the ability to pay as of the date of filing the Application for Labor Certification. This is sometimes a troublesome requirement for marginal business operations which reflect little or no profit. PROCESSING OF LABOR CERTIFICATION CASES UNDER PERM

Processing Of Labor Certification Cases Under PERM

The Department of Labor has recently published new regulations completely overhauling the Labor Certification (LC) process. The new procedure, originally proposed several years ago, is known as the PERM program (Program Electronic Review Management).

The goal of the PERM program is to provide more expeditious and consistent handling of LC applications throughout the U.S. The current system has proven to be highly unsatisfactory, with hundreds of thousands of cases backlogged nationally. In some states cases have taken several years to complete.

Some of the highlights of the PERM regulations include:

• PERM Applications will all be filed electronically through an online system being set up by DOL or by mail at one of only two processing centers established in Atlanta and Chicago.
   

• Under PERM the sole function of the State Employment Offices will be to provide a Prevailing Wage Determination, and they will otherwise not be involved in the processing of the applications.
   

• PERM provides detailed instruction for extensive prior recruitment which must always precede the filing of an Application (under the old system recruitment may take place before or after filing). This must include

  Two print ads in a Sunday edition of a mass circulation newspaper such as the Boston Globe or the Boston Herald, or one Sunday print ad in a newspaper and one journal ad   Listing on the State Job Bank for 30 days (with another 30 day wait period after completed before filing any case)   Posting a printed notice on company premises for ten consecutive business days   Posting in any in-house media AND At least three additional types of recruitment based on the following list:   Job fairs   Employer's web site   Job search website other than the employer's   On-campus recruiting   Trade or professional organizations   Private employment firms   Employee referral program with incentives   Campus placement offices (if job requires a degree but no experience)   Local and ethnic newspapers • radio and television advertising

Once an application for Labor Certification has been approved, there are two additional steps required in order for an individual to obtain lawful permanent resident status; an I-140 immigrant visa petition is filed on their behalf by the employer, and, in some cases, the individual may file for Adjustment Of Status (I-485), which is essentially the application for green card. There is an option for obtaining Lawful Permanent Resident through consular processing abroad. The I-140 and I-485 can be filed simultaneously in most situations, assuming visa number availability for the country of nationality is current at the time of Labor Certification approval (right now, there is a worldwide backlog in the EB3 professional employment based category). Family members may also file their applications for adjustment of status along with the principal applicant, assuming that they are eligible to do so.

Costs Incurred in the Labor Certification Process

DOL Recently implemented new rules concerning the allocation of costs associated with the processing of a Labor Certification application. Under current law, the employer MUST bear all such expenses, including any legal fees incurred, related to the Application process. Other costs typically are limited to advertising expenses, and in some cases the cost of a private wage survey. The alien beneficiary cannot voluntarily assume or be required to pay such costs.

Summary

The ability to obtain a Labor Certification may be critical to an employer seeking to obtain or continue the services of a qualified alien employee, as well as to the alien beneficiary seeking to remain permanently in the U.S. Detailed procedures exist which must be carefully observed in order to accomplish this result. Interested employers should not be deterred by what may at first glance seem to be a bewildering array of obstacles, but should realistically assess the prospects for a successful resolution by seeking competent guidance.

We cannot guarantee that any Labor Certification application will be successful. Moreover, even if Labor Certification is obtained, other circumstances, including the passage of time, changes in the employment situation, or changes in the law, may make it impossible for the applicant to achieve his ultimate goal of obtaining Lawful Permanent Resident status.