Permanent Residency

Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

According to the Labor Department:

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

According to the Labor Department:

No, only cases currently open and in process at the BEC are eligible.

However, if the employer is using the "No BEC Contact" procedure to reconstruct a case or the "Reopen" procedure to request reopen for a case you believe was closed in error as described in prior FAQs, you may submit your RIR conversion request and supporting documentation along with your reconstructed case. If requesting RIR conversion with another action, employer submissions should be clear that multiple actions are being requested, and documentation for each should be provided.

According to the Labor Department:

The initial step for the BEC will be to conduct a search to reconfirm that the BEC does not have the case in question.

If a case is NOT found, an e-mail will be sent to the employer or attorney indicating that the case could not be located and will provide instructions regarding what information the employer should provide. You will be required to send the following information (via regular mail) to the BEC:

Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer's application?

According to the Labor Department:

Yes, business necessity is a means to justify requirements which are not normal to the occupation and/or exceed the SVP. While the job opportunity's requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP.

NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

The BECs have sent all 45-Day Center Receipt Notification Letters (CRNL) to employers or their attorneys for cases shipped to the BECs by State and Regional Offices. OFLC recognizes that there may be some employers or their agents that believe they should have an application pending but have still heard nothing and received no information from the appropriate BEC about the application. In order to provide employers with the opportunity to have their case processed while also guarding against potential fraud, OFLC has established specific steps for employers or their attorneys to follow.

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an application eligible for RIR conversion?

According to the Labor Department:

Yes. If the employer is able to remedy the shortcomings in the pattern of recruitment or documentation, requests for RIR conversion may be made even if RIR was denied previously up until the BEC begins supervised recruitment on the application, at which time the case is no longer eligible for conversion.

How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

According to the Labor Department:

The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

According to the Labor Department:

No, any correction or change must be sent to the appropriate Center following the instructions above.

"Permanent residency status" is the type of U.S. immigration status which permits a foreign national to reside permanently in the U.S. A foreign national with permanent residency status has similar rights to a U.S. citizen (e.g., the right to accept employment) with some exceptions (e.g., only a U.S. citizen can vote in the vast majority of elections). Obtaining permanent residency status is often a precursor to obtaining U.S. citizenship.

Permanent residency status in the United States is often referred to as having a "green card", a name which was given to the document issued by the U.S. government to persons who attained permanent residency status. Although the document is no longer green, the term is still widely used. Technically, a person in this status is referred to as a "Resident Alien" by the USCIS.

According to the Labor Department:

All cases are being assigned new case numbers once entered into the Permanent Backlog System (PBLS). Once a case has been entered into PBLS, the BPC will send the employer and attorney of record (if applicable) a letter with the new case number.

According to the Labor Department:

Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the alien or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the alien. The agent or attorney may only participate if the agent or attorney is the employer’s representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?

According to the Labor Department:

No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.

I am a new attorney of record for a permanent foreign labor certification case. Our firm wishes to notify your office of this change. How do I do this?

According to the Labor Department:

Please send the appropriate Backlog Processing Center a letter stating the requested change and enclose a new signed and dated G-28 with the updated information. A separate G-28 is required for each case for which you want to make a change. Each G-28 must be signed and dated by the employer and/or the alien, depending on which party you represent.

According to the Labor Department:

No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

According to the Labor Department:

Yes, an advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.

NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State Workforce Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer's obligation to inform the Department of Labor of these requirements?

According to the Labor Department:

The job summary specific to the SOC/O*NET code and Occupation Title provided by the SWA on the prevailing wage determination is considered to identify the requirements normal to that occupation. Any requirements in addition to those listed in the summary will be considered not normal for the occupation and the employer should be prepared to provide proof of business necessity if requested by the Certifying Officer. These summary reports can be accessed at http://online.onetcenter.org. Even if the employer has informed the SWA of these requirements in a prevailing wage determination request, the employer must still inform the Department of Labor by correctly attesting on the Application for Permanent Employment Certification, ETA Form 9089/Questions H-12 or H-13. Additionally, if the employer has not accurately attested on ETA Form 9089 that there are requirements not normal to the occupation, the application will be denied whether proof of business necessity is available or not.

According to the Labor Department:

Yes, your request must be e-mailed to the appropriate BEC no later than 30 calendar days after the posting of this announcement on the OFLC website.

According to the Labor Department:

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

NOTE: Employers will not be permitted to submit applications by facsimile.

An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

According to the Labor Department:

Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:

"Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."