Labor Certification (LC) must establish that the alien will not displace U.S. workers or adversely affect the wages or working conditions of U.S. workers. This is established by demonstrating that no minimally qualified, able and willing U.S. worker is available.

Program Electronic Review Management System (PERM)

On March 28, 2005 DOL initiated a new system for processing Labor Certification applications under the Program Electronic Review Management System (PERM). In order to process Labor Certification application under PERM, employer, attorney or agent must file ETA 9089 electronically.

Prevailing Wage Determination (PWD)

Before submitting the ETA 9089, the employer must get a prevailing wage determination (PWD). The document evidencing the PWD must be physically kept by the employer in the event of an audit, and the prevailing wage must be entered on the ETA 9089 before submission. The validity period of PWD may vary between 90 days and one year and the ETA 9089 must be filed or the required recruitment initiated during that period. If there are two PWDs because of alternate job requirements, the employer must pay the higher of the two.

Recruitment process

The recruitment must occur prior to filing the ETA 9089 within a 30/180 period. Under 20 C.F.R. §§656.40(c) an employer must also conduct at least some of the recruitment during the PWD validity period.

A. Recruitment for Professional Occupations:

DOL has set forth a list of professional occupations that require specialized recruitment.

  1. Timing – The employer must conduct recruitment within 6-month period prior to filing the ETA 9089. A posting notice to employees, a job order, and a 2 print advertisements are mandatory and must be placed at least 30 days but no more than 180 days before filing the ETA 9089.
  2. Job order with SWA – The job order must be open with the SWA for a period of 30 calendar days, placed with the SWA no earlier than 180 days before filing the ETA 9089, and completed 30 days prior to filing the ETA 9089. 20 C.F.R. §656.17(e).
  3. Posting Notice of Filing – Employer must provide notice to the Union if there is a CBA. If no collective bargaining agreement, then post notice at the facility or location of employment for at least 10 consecutive business days in a conspicuous place.
  4. Sunday Newspaper Ads – The ads must comply with 20 C.F.R. §656.17(f) The employer must furnish copies of newspaper pages in which the ads appeared or proof of publication furnished by the newspaper.
  5. Professional Journals – An employer may substitute a professional journal for one of the 2 ads if the job requires experience and an advanced degree and a professional journal normally would be used to advertise the job opportunity.
  6. Additional Steps (3 of 10) – In addition to the mandatory steps the employer must take 3 of the following 10 additional steps to recruit.
    • Job Fairs
    • Employer’s website
    • 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
    • Local and ethnic newspapers
    • Radio and television advertisements

B. Recruitment of Nonprofessional Occupations:

Same mandatory requirements of an SWA job order, posting notice and advertisements on 2 Sundays must be followed with the recruitment of nonprofessional occupations. 20 C.F.R. §656.179e)(2)

Our office assists the corporations throughout with the PERM process starting from the PWD until filing the ETA 9089. We have extensive experience with the PERM filing for professionals and nonprofessional, recruitment efforts and responding to the PERM audits and filing appeals (BALCA).