The Immigration Act of 1990 created several employment-based immigrant visa categories. Among them, the EB-2 and EB-3 visas enable U.S. companies to sponsor foreign workers for a Green Card based on an offer of permanent employment. Though Congress recognized such need to hire foreign labor at times, it also recognized that qualified American workers must be protected from being replaced. Thus, the U.S. Department of Labor (DOL) is tasked with certifying the necessity of foreign labor employment before a beneficiary foreign national worker may be sponsored for a visa.
The DOL has promulgated several frameworks over the years to implement the foreign labor certification process. PERM (Program Electronic Review Management) was implemented in 2005 and governs the current procedures employers must undergo before they can apply for foreign labor certifications. The program must be used all employers who intend to sponsor foreign nationals for permanent employment in the United States under the EB-2 and EB-3 immigrant visa categories (with the exception of EB-2 National Interest Waivers).
PERM established a process by which employers must demonstrate that the hiring of a foreign worker will not displace any qualified U.S. worker. Thus, before filing a PERM application, an employer must test the labor market to ensure there are no qualified and willing U.S. workers available to fill the vacant job position, and that by employing a foreign worker, neither the wages nor the working conditions of similarly employed U.S. workers will be adversely affected. This is done by following several steps of a recruitment process by which the position is advertised and potential candidates have an opportunity to apply.
The PERM labor certification should not be confused with the labor condition application, which is used for some categories of non-immigration employment, such as H-1B and E-3. Although the two involve some similar concepts and are both processed by the DOL, they nonetheless serve very different purposes.
Second-preference employment petitions are provided for in Section 203(b)(2) of the Immigration and Nationality Act. EB-2 categories include the following types of employment positions:
Ø Advanced Degree – jobs that require an advanced degree (such as a master’s degree or higher), and the beneficiary worker must possess one such degree or its equivalent (a bachelor’s degree plus five years of progressive work experience in the relevant field).
Ø Exceptional Ability – jobs for workers that have an exceptional ability in the sciences, arts, or business. Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the respective field. A worker can qualify as having an exceptional ability a particular area by meeting three of the following criteria:
· Official academic record showing that he or she has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
· Letters documenting at least 10 years of full-time experience in the occupation
· A license to practice the profession or certification for the profession or occupation
· Evidence that he or she has commanded a salary or other remuneration for services that demonstrate his or her exceptional ability
· Membership in a professional association(s)
· Recognition for his or her achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations
· Other comparable evidence of eligibility, as may be applicable.
The EB-2 visa also includes the National Interest Waiver category, which, unlike the categories above, does not require a permanent job offer by an employer and does not necessitate PERM processing.
Third-preference employment petitions are provided for in Section 203(b)(3) of the Immigration and Nationality Act. EB-3 categories include the following types of employment positions:
Ø Skilled Workers – jobs requiring applicants to possess at least 2 years of relevant job experience or training.
Ø Professionals – jobs requiring applicants to possess certain education, which must be a minimum of a U.S. bachelor’s degree or its foreign equivalent, and such degree must be the normal requirement for entry into such occupation.
Ø Unskilled/Other Workers – permanent, non-temporary jobs that require less than 2 years of relevant experience or training
Some workers may have experience and/or education that may potentially make them eligible for either an EB-2 or EB-3 category. However, the visa category for sponsorship is determined by the employer’s requirements for the job, and not any potential candidate’s qualifications. Specifically, the critical part of deciding the right visa category is the nature and level of the offered job position.
However, employers do not have wide latitude over the requirements they may set for positions offered. The DOL requires that the qualification prerequisites employers set for a position be similar to the typical requirements such position requires in the job market. The DOL refers to Job Zone levels, which rates a position on a scale of 1 to 5 according to its complexity. If the employer’s DOL observes the employer’s requirements as exceeding the Job Zone, the employer may be asked to provide evidence to justify a unique business necessity of requiring a higher than typical standard.
Each Job Zone level can generally be described as follows:
Ø Job Zone 1 – Requires little preparation, such as several months of experience, and no minimum level of education.
Ø Job Zone 2 – Requires some degree of preparation, typically no more than one year, and no minimum level of education.
Ø Job Zone 3 – Requires a medium amount of preparation, between 1-2 years, and no amount of education.
Ø Job Zone 4 – Requires consideration amount of preparation, between 2-4 years, or a bachelor’s degree supplemented with 2 years of experience.
Ø Job Zone 5 – Requires extensive experience of more than 4 years, as well as a degree in a relevant field.
EB-2 and EB-3 visas, like all employment-based immigration visas, are limited in number and often become oversubscribed, causing retrogression and long waiting times in the visa queue. Though the visas for each category are independent of one another, there are common trends. Retrogression tends to occur more frequently for EB-3 than EB-2 visas for countries including China, India, and the Philippines, and such backlogs also tend to have longer waiting times than when EB-2 retrogresses. Thus, properly structuring the requirements of the job offer may significantly affect when the foreign worker will be able to start the job.
The DOL requires employers sponsoring immigrant employees to pay a salary that is equal to or greater than the prevailing wage for such position. A prevailing wage is based on factors such as job position, geographic area of employment, and the requirements for the position. Prevailing Wage Determinations (PWDs) are made by the National Prevailing Wage Center (NPWC). Prevailing Wage Determinations are valid for a period of time set by the NPWC, which may be anywhere from 90 days to a year. Employers intending to rely on a PWD must file their foreign labor certification application before the PWD expires.
The NPWC bases its prevailing wage determinations on labor market statistics. Its primary source of data is the Occupational Employment Statistics (OES), which collects data on jobs in all industries in all regions of the United States. The OES is organized under the Bureau of Labor Statistics (BLS), which is part of the DOL. This data is published and frequently updated in an Online Wage Library by the Foreign Labor Certification Data Center. The library is publicly available at http://www.flcdatacenter.com.
The DOL maintains a system called the Occupational Information Network (O*NET), which provides information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels pertaining to the foreign labor certification process. O*NET is available to the public at http://online.onetcenter.org. The BLS also classifies occupational wage information by a system known as the Standard Occupational Classification (SOC), which is available at https://www.bls.gov/soc/. All of these resources are all used to determine the prevailing wage of a job position.
The primary factors considered in a PWD are assessed as follows:
Ø Nature of the Job Offer – the nature of a job is initially assessed by reviewing the employer’s job description and offer and finding the relevant occupational classification in the SOC. The O*NET database may assist in providing information pertaining to similar positions to determine the skills, experience, and education typically required.
Ø Area of Intended Employment – this refers to the geographic area within normal commuting distance of the place of intended employment. The Online Wage Library makes available wage data for counties and metropolitan statistical areas (MSAs).
Ø Similarly Employed – the term “similarly employed” refers to substantially comparable jobs in the occupational category as the intended employment. If no such workers are employed by other employers in the area of intended employment, then “similarly employed” refers to jobs requiring a substantially similar level of skill within the area of intended employment, or substantially comparable jobs in the occupational category as employers outside of the area of intended employment if there are no substantially comparable jobs in the area of intended employment.
The NPWC implements a four-level scale of wages for each occupation, commensurate with experience, education, and level of supervision. The four wage levels are:
Ø Level 1 – An entry-level position that involves routine tasks, limited exercise of judgment, and close supervision by a superior.
Ø Level 2 – A qualified-level position that involves moderately complex tasks and a limited exercise of judgment.
Ø Level 3 – An experienced-level position that involves the exercise of judgment and coordination of other staff.
Ø Level 4 – An advanced-level position that requires advanced skills and diversified knowledge, and involves supervision or management over other staff.
An employer may also request the NPWC to make a wage determination on the basis of a published survey provided by, funded by, or conducted by the employer. Such survey must meet the following criteria:
Ø The survey must be recent. It must have been published within 24 months of the date of submission of the PWD request; it must be the most current edition of the survey; and it must be based on the data collected within 24 months of the date of the publication of the survey.
Ø The wage data submitted by the employer must reflect the geographic area of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within the normal commuting distance of the place of intended employment. All locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distances for prevailing wage purposes. An employer location just outside of the borders of a PMSA, MSA, or CMSA boundary may still be considered within normal commuting distance.
Ø The job description applicable to wage data submitted by the employer must be adequate to determine that the data represents workers who are similarly employed in jobs requiring substantially similar levels of skills.
Ø The wage data must have been collected across industries that employ workers in the occupation.
Ø The PDW should be based on the arithmetic mean (weighted average) of wages for workers that are similarly employed in the area of intended employment. If the survey provides a median wage of workers similarly employed in the area of intended employment and does not provide an arithmetic mean, the median wage shall be used as the basis for making a prevailing wage determination.
Ø In all cases where an employer provides the NPWHC with wage data for which it seeks acceptance, the employer must include the methodology used for the survey to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage, including its adherence to these standards for the acceptability of employer-provided wage data.
Finally, in cases where the offered job is covered by a collective bargaining agreement, the wage set per such agreement shall control, provided that the employer can provide evidence that such agreement was negotiated at arm’s length.
The first step in PERM the recruitment process is to decide whether the occupation is professional or nonprofessional one. Generally, professional occupations require at least a bachelor’s degree. However, the DOL regulations provide a list of jobs that are deemed to be professional occupations regardless of the required level of education, and recruitment for such jobs must follow the recruitment strategy set forth for professional occupations.
The second step should be to prepare advertisements that the employer will use to advertise the offered position to the general public. An advertisement must at a minimum include the employer’s name and contact information, the address of the intended place of employment, a description of the job in sufficient detail, and instructions for submitting a resume. The offered salary is not required to be listed, but if it is, it must be above the PWD.
The third step is to publish the advertisement. The employer must run the advertisement with the State Workforce Agency (SWA) for a period of at least 30 consecutive days, as well as in two Sunday editions of a major print newspaper that serves the area of intended employment. If no Sunday newspaper available is available in area, the employer may use another newspaper with the widest circulation in the applicable area. Additionally, in recruitment for professional positions, employers must also run the ad in three other forms of media from a list of 10 options provided by the DOL, which includes:
· Advertisement on the employer’s website
· Advertisement with a local college job placement office
· Advertisement with a relevant trade or professional organization
· Advertisement in a local or ethnic newspaper
· Advertisement through a private employment recruitment firm
· Advertisement on an online job search website
· Advertisement on radio or television
· Advertisement in the employer company’s employee referral program
· Participation in a local job fair
· On-campus recruitment at a local college
The employer must also post a Notice of Filing at the place of the intended employment. The Notice of Filing is an internal company notification that an application for foreign labor certification is being filed in connection with the job opportunity. The notice must include the same basic job description as in the recruitment advertisement, and must also include the wage. It must be posted in a conspicuous place for 10 consecutive business days.
Finally, at the end of the recruitment process, the employer must prepare a recruitment report, which summarizes all activities that were undertaken by the employer, all the applications and resumes that were received, all the candidates that were interviewed, and the overall results.
The PERM recruitment process must be entirely conducted within 180 days. The regulations require that the application for foreign labor certification be filed no later than 180 days after the beginning of recruitment. Employers must also wait at least 30 days after completing all recruitment and before filing the application.
It is not enough to merely perform the PERM recruitment activities prior to submitting an application for a foreign labor certification. Employers must also make a bona fide effort to contact and interview qualifying potential candidates. Any applicants who meet the minimum requirements for the position must be interviewed. Employers should take notes during each interview and be able to provide lawful, job-related reasons for rejecting any candidate.
DOL has the authority to conduct an audit of an employer’s PERM compliance. DOL conducts such audits on both random and selective targets. Selective audits are frequently triggered in the following situations:
· The primary requirement for the offered job is less than a bachelor’s degree (excluding dairy workers).
· Trade-related occupations.
· The employer is a public school.
· Positions that require a degree but no experience.
· The employer has indicated that it has recently had a layoff.
· The hired candidate has a family relationship with the employer or holds interest in the employer company.
· The same employer submits an application for the same employee following a prior denial in the same year.
· The same employer submits an application for the same employee following an audit and subsequent withdrawal.
· The employer submits a paper application instead of filing electronically.
In the event of an audit, employers are required to produce documentary evidence of the undertaken recruitment activities, received applications, and conducted interviews, as well as explain the reason for the rejection of each applicant. Moreover, DOL may request that the employer demonstrate that rejected applicants’ skills cannot be attained within a reasonable period of on the job training. For these reasons, it is imperative that the employer keep records of the entire PERM process for a period of five years from the filing of an application for foreign labor certification.
The employment-based immigration categories are codified in the Immigration and Nationality Act, at 8. U.S.C. 1153(b). Two other statutes, the Davis-Bacon Act and the McNamara O’Hara Service Contract Act govern the DOL’s wage determination process as it applies to federal contractors and subcontractors.
These immigration statutes passed into law by Congress as implemented at the agency level by USCIS, as well as by the Department of Labor – which oversees the foreign labor certification process. The DOL’s regulatory scheme for PERM recruitment and wage determination is set forth at 20 CFR 656. Additionally, most of the data the DOL uses in its Prevailing Wage Determinations is publicly available at the following resources
· Foreign Labor Certification Data Center (http://www.flcdatacenter.com)
· Occupational Information Network (O*NET) (http://online.onetcenter.org)
· Bureau of Labor Statistics – Standard Occupational Classification (https://www.bls.gov/soc/)
The Board of Alien Labor Certification Appeals (BALCA) is an administrative appellate division within the Department of Labor, and hears employers’ appeals in cases of denied labor certifications. As such, BALCA’s jurisdiction includes interpretation of the DOL’s broad and often unclear PERM regulations.
One of the most notable cases decided by BALCA was In the Matter of Francis Kellogg (1994-INA-465). Though this case is from the pre-PERM 1990s era, it produced a sentinel decision that continues to be frequently cited and applied to the current regulatory scheme. In that case, the Board held that where an alien does not meet the primary job requirements, but only potentially qualifies for the job because the employer has chosen to list alternative job requirements, the employer’s alternative requirements are considered to be unlawfully tailored to the alien’s qualifications, unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable. This case made famous the term “Kellogg language,” which refers to the requirement that an employer indicate that applicants with any suitable combination of education, training, or experience are acceptable.
The entire process of sponsoring a foreign worker for employment-based immigration involves a series of applications and petitions that need to be filed by both the employer and employee.
The application process begins with the Department of Labor. The DOL has implemented an online platform known as iCERT to enable employers to file applications. The first application employers file with the DOL is the Form ETA-9141, Application for Prevailing Wage Determination. Requesting a PWD requires a classification of the offered job position, a description of the job responsibilities and prerequisites, and a disclosure of the intended place of employment. The average turnaround time for a PWD is 90 days.
After the pertinent recruitment activities are completed, the employer files the Form ETA-9089, Application for Permanent Employment Certification. The information required for submission in this application includes:
· Occupation information – job description, job requirements, prevailing wage, offered wage, and area of intended employment.
· Recruitment information – disclosure of places, dates, and methods of all recruitment activities conducted by the employer.
· Worker information – biographical data, educational background, and work experience of the intended worker.
Processing times for PERM applications fluctuate from around 4-5 months for a typical analyst review to 8-9 months for an audited review. If the ETA-9141 is approved by the DOL, the employer may proceed to sponsoring the foreign worker with USCIS. The employer must file the Form I-140, Immigrant Petition for Alien Worker. Required evidence in support of the petition generally includes, as may be applicable per specific categories:
· Foreign Labor Certification from the Department of Labor
· Evidence of job offer by the employer to the foreign worker
· Evidence of the level of education required for entry into the occupation
· Evidence of the employer’s ability to pay the offered wage
· Evidence of the foreign worker’s education
· Evidence of the foreign worker’s relevant work experience
· Evidence of the foreign worker’s other qualifications such as licenses, certifications, or affiliation with a relevant professional organization
USCIS processing times also fluctuate, but may typically be as short as 4-5 months or as long as a year. For most employment visa categories, employers have the option of requesting premium processing for a fee of $1,225 on top of the regular $700 filing fee for the Form I-140. Premium processing takes 15 days, not including response times for Requests for Evidence.
After approval of the Form I-140, and when a visa is available for the foreign worker per the U.S. State Department’s Visa Bulletin, the foreign worker may apply for an immigrant visa through the National Visa Center and attend an immigrant interview at his or her local U.S. consulate overseas. This process normally takes approximately six months. Alternatively, if the worker is already in the U.S., he or she may file a Form I-485, Application for Adjustment of Status, but processing times for employment-based adjustment often take more than a year. In many cases, a Form I-140 and I-485 may be filed concurrently.
It is noteworthy to mention that the PERM recruitment process need not be applied to certain positions. There are two notable exceptions to PERM recruitment – Schedule A jobs and Special Handling jobs.
The DOL maintains a list called Schedule A, which includes occupations that are pre-certified for foreign labor because they have been pre-determined to not adversely affect U.S. workers due to a shortage of able, willing, qualified and available workers for such occupations in the United States. Schedule A is comprised of two groups of occupations. Group I includes physical therapists and professional nurses. Group II includes individuals with an exceptional ability in science or arts and university teachers. Employers hiring workers for Schedule A occupations can skip the regular PERM process, though a PWD and Notice of Filing is still required. A Form ETA-9089 is also required, but may be filed directly with USCIS with a Form I-140, instead of with the DOL.
Special Handling cases are reserved for professors, instructors, and lecturers at post-secondary educational institutions. Special Handling was designed to allow colleges and universities to sponsor foreign workers as permanent employees in teaching positions if the foreign worker is deemed to be the best qualified for the position. The PERM process for Special Handling cases deviates from the traditional PERM recruitment procedures in the following ways:
Ø The educational institution must have an established tenure track position selection procedure.
Ø The selection of a worker for the position must go through the institution’s tenure track selection procedure, including its appropriate selection or recruitment committee.
Ø The application for foreign labor certification must be filed within 18 months of the date the foreign worker was selected for the position.
Ø The institution must advertise the position in a national professional journal. If such posting is made an electronic or web-based journal, the posting must run for at least 30 calendar days.
Ø The Notice of Filing does not need to include the offered salary.
The critical difference between regular PERM cases and Special Handling PERM cases is the qualification of the worker. For most occupations, a foreign labor certification will be denied if there exists any U.S. worker candidate who is “minimally qualified” for the position, meaning that he or she is meets the minimum requirements for the offered position. Special Handling teaching positions, however, use the “more qualified” standard, by which a labor certification will be granted if the employer can establish that there are no U.S. workers who are at least as qualified for the position as the selected foreign candidate – even if one or more “minimally qualified” U.S. workers for the teaching position exist.
Issues often arise when a worker’s job with the sponsoring employer is terminated, voluntarily or involuntarily, and the worker changes his or her job. “Portability” refers to the worker’s ability to transfer his or her employment based permanent residency to another job.
Portability, as applied to changing jobs before a worker’s green card is approved, is governed by the American Competitiveness in the 21st Century Act (AC21). Under AC21, a worker is permitted to accept new employment when a Form I-140 has been approved or is approvable when filed concurrently with a Form I-485, and the Form I-485 has been pending for at least 180 days. However, AC21 requires that the worker’s new job be the “same or similar” as the original terminated one. AC21 does not define what “same or similar” means, but USCIS considers the job description, the SOC classification code, and the wage.
In assessing a new position, USCIS has broad latitude and discretion, and no factor considered is determinative. A slightly different SOC code may be acceptable if it is within the same broader SOC occupational code, as AC21 is intended to permit career progression, or even self-employment. Substantially different SOC codes may also be accepted if the jobs resemble each other. The new wage does not have to be identical, but should not be significantly different. AC21 also does not require a new labor certification by the new employer, nor that the new job be in the same geographic area.
If a job offer is terminated or a petition is withdrawn before the worker’s Form I-485 has been pending for at least 180 days, the worker’s application will likely be denied regardless of the acceptance of any new and similar position. Sponsorship by a new employer at this point would require starting over with a new foreign labor certification. However, in such cases, workers are able to retain the priority date of a previous employment-based petition, which eliminates the waiting period in employment categories with retrogressed visa numbers.