Labor Certification

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.

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."

According to the Labor Department:

The policy of the U.S. DOL/ETA National Office prohibits the expediting of applications.

Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?

According to the Labor Department:

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

According to the Labor Department:

The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.

According to the Labor Department:

Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.

Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection with their application. How can we follow up on status of cases and at what point should we worry about not getting a letter?

According to the Labor Department:

Due to the large volume of files transferred to the two Backlog Processing Centers, we cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center within 45 days.

According to the Labor Department:

No, while many provisions in the PERM regulation are the same as, or similar to, the provisions found in the regulation in effect prior to March 28, 2005, the PERM regulation can not be applied to applications filed under the former regulation. At this point, all provisions of the PERM regulation are applicable only to applications filed on or after March 28, 2005, under the PERM regulation.

According to the Labor Department:

The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.

When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

According to the Labor Department:

The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.